i

JUDELL-LESHA JOSEPH

209501569

The effectiveness of South African labour legislation in dealing with mass

industrial action before and after the promulgation of The Constitution Act

108 of 1996

(Submitted in completion for the LLM Degree in Labour Law at the University of

Kwa-Zulu Natal in the year 2016)

Supervisor: Adv. Darren Cavell Subramanien

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FORMAL DECLARATION

I hereby declare that this thesis is my own unaided work, and that all my sources of information

have been acknowledged. To my knowledge, neither the substance of this dissertation, nor any

part thereof, is being submitted for a degree in any other University.

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Acknowledgements

There are many people who God brings into our lives who make a lasting impression on who we

become and what we will achieve. I have been blessed to have such people who through their

inspiration and encouragement have made this dissertation possible. The people are as follows:

My family, especially my late mother, whose ideals are evident in who I have become.

My supervisor, Adv. Darren CavellSubramanien, for his guidance, advice and constant

motivation throughout this dissertation.

My editor, DrRose Kuhn, for her willingness to assist me in the editing of my thesis and the

location of sources that have been necessary for the completion of this work.

The library staff at both the Law School Library and the Main Library at the University of Kwa-

Zulu Natal (Pietermaritzburg Campus) for assisting me in the location of resources.

However, above all I would like to thank The Lord Jesus Christ, whose strength and faithfulness

has been sufficient in all seasons of my life.

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Contents CHAPTER ONE ............................................................................................................................................... 1

INTRODUCTION ......................................................................................................................................... 1

1.1. BACKGROUND TO THE STUDY............................................................................................................ 1

1.2. STATEMENT OF THE PROBLEM .......................................................................................................... 3

1.3. OBJECTIVES OF THE STUDY ................................................................................................................ 5

1.4. RELEVANCE OF THE STUDY ................................................................................................................ 6

1.5. RESEARCH QUESTIONS ....................................................................................................................... 7

1.6. METHODOLOGY ................................................................................................................................. 7

1.7. TIME FRAME FOR THE COMPLETION OF THE DISSERTATION ............................................................ 8

1.8. OUTLINE OF THE CHAPTERS ............................................................................................................... 8

CHAPTER TWO .............................................................................................................................................. 9

THE HISTORICAL DEVELOPMENT OF LABOUR LEGISLATION .................................................................... 9

2.1. INTRODUCTION .................................................................................................................................. 9

2.2 THE INCEPTION OF THE UNION OF SOUTH AFRICA .......................................................................... 11

2.2.1. The period between the years 1652 and 1910 ......................................................................... 11

2.3. THE RIGHTS OF WORKERS UNDER THE APARTHEID REGIME AND THE PROGRESSION INTO

DEMOCRATISED SOCIETY (1910-1948) ................................................................................................... 15

2.3.1. The period between the years of 1910-1948 ........................................................................... 15

2.3.2. The period between the years 1948-1990 ................................................................................ 24

2.3.3. The initiation of a new labour relations framework between the years 1956 and 1973 ......... 27

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2.4. THE WIEHAHN REFORMS ................................................................................................................. 32

2.5 DISCUSSION OF THE ROLE OF THE INDUSTRIAL COURT IN DEVELOPING PERTINENT CASE LAW

THAT HAVE ADEQUATELY ILLUSTRATED THE INCONSISTENCIES BETWEEN LEGISLATION AND THE

LABOUR COURTS ..................................................................................................................................... 39

2.6 CONCLUSION ..................................................................................................................................... 50

CHAPTER THREE .......................................................................................................................................... 52

INTERNATIONAL LAWS REGULATING STRIKE ACTION ............................................................................ 52

3.1. INTRODUCTION ................................................................................................................................ 52

3.2 THE NECESSITY FOR THE PROTECTION OF THE RIGHT TO STRIKE .................................................... 53

3.3 THE NECESSITY FOR LIMITATIONS ON THE RIGHT TO STRIKE ........................................................... 64

3.4 THE ENTRENCHMENT OF THE RIGHT TO STRIKE IN INTERNATIONAL INSTRUMENTS ...................... 73

3.4.1 THE INTERNATIONAL LABOUR ORGANISATION (ILO) ................................................................ 73

3.4.2 THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL

FREEDOMS (ECHR) .............................................................................................................................. 77

3.4.3. AFRICAN CHARTER .................................................................................................................... 79

3.5. CONCLUSION .................................................................................................................................... 81

CHAPTER FOUR ........................................................................................................................................... 83

THE ENTRENCHMENT OF FUNDAMENTAL LABOUR RIGHTS UNDER THE LABOUR RELATIONS ACT 66 OF

1995 ........................................................................................................................................................ 83

4.1. INTRODUCTION ................................................................................................................................ 83

4.2 THE ROLE OF THE LABOUR RELATIONS ACT (LRA) ............................................................................ 84

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4.3. THE ENDORSEMENT OF TRADE UNION RIGHTS AND COLLECTIVE BARGAINING ............................ 89

4.3.1 THE ENDORSEMENT OF TRADE UNION RIGHTS ......................................................................... 89

4.3.2. THE RIGHT TO COLLECTIVE BARGAINING ................................................................................. 96

4.4. THE FRAMEWORK FOR THE RESOLUTION OF INTEREST DISPUTES ................................................. 99

4.5. THE ENTRENCHMENT AND REGULATION OF THE RIGHT TO STRIKE ............................................. 101

4.5.1. SECONDARY STRIKES ............................................................................................................... 113

4.5.2. PROTEST ACTION .................................................................................................................... 124

4.6. CONCLUSION .................................................................................................................................. 125

CHAPTER FIVE ........................................................................................................................................... 127

THE REGULATION OF INDUSTRIAL ACTION ........................................................................................... 127

5.1. INTRODUCTION .............................................................................................................................. 127

5.2. PROCEDURE FOR PROTECTED STRIKES .......................................................................................... 127

5.2.1 The requirement of 48 hours notice ........................................................................................ 128

5.3. WHEN STATUTORY PROCEDURE DOES NOT HAVE TO BE FOLLOWED .......................................... 138

5.4. THE PROHIBITIONS ON THE RIGHT TO STRIKE ............................................................................... 139

5.5. THE METHODS OF CONTROLLING AND DETERRING UNPROTECTED STRIKE ACTION IN SOUTH

AFRICA ................................................................................................................................................... 153

5.6. CONCLUSION .................................................................................................................................. 166

CHAPTER SIX .............................................................................................................................................. 167

THE EFFECTIVENESS OF LEGISLATION IN GOVERNING STRIKE ACTION AND ITS FUTURE AMENDMENTS

.............................................................................................................................................................. 167

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6.1. INTRODUCTION .............................................................................................................................. 167

6.2. A REPORT ON RECENT STRIKE ACTION IN SOUTH AFRICA ............................................................. 168

6.3. AN ANALYSIS OF THE ILLEGAL STRIKES AND POSSIBLE RECOMMENDATIONS .............................. 179

6.3.1. ILLEGAL STRIKING BY EMPLOYEES WHO ARE PROHIBITED BY THE LRA ................................. 180

6.3.2. THE INHERENT ATTRIBUTE OF VIOLENCE IN STRIKE ACTIVITY................................................ 182

6.4. ANALYSIS OF THE EFFECTIVENESS OF INTERDICTS WITH RESPECT TO ILLEGAL STRIKES ............... 195

6.5. CONCLUSION .................................................................................................................................. 206

CHAPTER SEVEN ........................................................................................................................................ 209

CONCLUSION ......................................................................................................................................... 209

7.1. CONCLUSION .................................................................................................................................. 209

BIBLIOGRAPHY .......................................................................................................................................... 211

1

CHAPTER ONE

INTRODUCTION

1.1. BACKGROUND TO THE STUDY

“The key, absolutely fundamental rights of workers are those rights that enable the working people to fight for and defend their rights. This group of rights consist of three rights namely, the right to establish and join trade unions, the right to collective bargaining and the right to strike”.1

The freedom to exercise these rights has to be acknowledged as an undeniable characteristic of a

liberated society.2 A society which lacks the right to strike cannot be regarded as a democratic

one.3 The effort to obtain rights for workers in South Africa has always been and continues to be

placed within an extensive framework of ideological and basic human rights battle for the people

of the country.4 Over the centuries industrial action has been fundamental in contributing to the

“cathartic progression” which has carved the edifice of employment law5 as we know it today.

South Africa’s transition to democratic labour relations has been interwoven with socio-

economic developments.6

The Wiehahn Commission’s (the Commision) Report of 1979 emerged as an oasis to a parched

and weary nation and a turning point in South African labour relations. It is only upon the

publication of the Commission’s Report could the majority of South Africa’s labour force benefit

from labour rights, particularly the legalisation of strike action.7 The development of the right to

strike, therefore, cannot be regarded in isolation but rather it is an essential mechanism utilised to

1 E Manamela & M Budheli, ‘Employees’ right to strike and violence in South Africa’ (2013) 46(3) CILSA 309. 2 J Bowers & M Duggan The Modern Law of Strikes (1987) 1. 3 L MacFarlane The Right to Strike (1981) 12. 4 R Bernikow ‘Ten years of the CCMA- An assessment for labour’ DITSELA (Western Cape) Labour Law Seminar (2007) 13. 5 W P Visser ‘“To fight the battle of the workers”: The emergence of pro-strike publications in the early twentieth century South Africa’ (2004) 49(3) International Review of Social History 3. 6 D du Toit ‘Industrial democracy in South Africa’s transition’ (1997) 1 LDD 39. 7 P Benjamin, R Jacobus & C Alberton Strikes, Lockouts and Arbitration in the South African Labour Law.Proceedings of the Labour Law Conference 1988 (1989) 27.

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counteract the dictates of management8 as well as promote and defend the interests of trade

union members.9

In South African National Defence Union v Minister of Defence and another,10 it was held that

the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as the

Constitution) entrenches the right for trade unions to collectively bargain, as well as their

members’ right to strike in order to advance collective bargaining.11 Thus, there exists an

inextricable relationship between these components because, “[i]f workers [can]not, in the last

resort, collectively refuse to work, they [can]not bargain collectively.”12 The constitutionalisation

of employment rights has thus beneficially influenced labour law13 by enshrining the

fundamental right to strike action within South African legislation.14

South Africa’s development of strike action echoes a historically segregated workforce.15

Government’s past enactment of discriminatory legislation created a divide between blacks and

whites16 thus inciting labour unrest, which has had both domestic and international

ramifications.17 Due to these racial policies, in 1964 the country was compelled to resign from

the International Labour Organization (ILO).18 After being threatened with international

exclusion and sanctions alongside a tremulous economy, Government was compelled to reform

its policies.19

8 T Cohen & L Mattee ‘Public Servant’s right to strike in Lesotho, Botswana and South Africa - A comparative study’ (2014) 17(4) PER 1631. 9 L J Matee Limitation on Freedom of Association The Case of Public Officers in Lesotho (unpublished LLM thesis, University of Kwazulu- Natal, 2013) 9. 10 South African National Defence Union v Minister of Defence and another 1999 (4) SA 469 (CC). 11 South African National Defence Union supra note 10 at 20. 12 J Brand Strike avoidance - How to develop an effective strike avoidance strategy? 23rd Annual Labour Law Conference (2010) 1. 13 G M Ferreira ‘The development of South African labour law for the past ten years (1994-2004)’ (2005) 24(2) Politeia 17. 14 S Vettori ‘The Labour Relations Act 66 of 1995 and the protection of trade unions’ (2005) 17 SA Merc LJ 297. 15 W P Visser ‘A racially divided class: Strikes in South Africa, 1973- 2004’ available at http://www.sun.academia.edu/WesselVisser, accessed on 5 July 2015. 16 V Mhungu Positive Discrimination in South African Employment Law: Has Affirmative Action Overstayed its Welcome? (unpublished LLM thesis, University of Kwazulu- Natal, 2013) 1. 17 T Cohen ‘Limiting organizational rights of minority unions: POPCRU v LEDWABA [2013] 11 BLLR 1137 (LC)’ (2014) 17(5) PER 2209. 18 B P S Van Eck ‘Regulated flexibility and the Labour Relations Bill of 2012’ 2013 De Jure 605. 19 W P Visser ‘From MWU to solidarity – A trade union reinventing itself’ (2006) 30(2) SAJLR 4.

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A defining event in the country’s history of labour was the mass strike action in Durban during

1973,20 which served as a precursor to the renaissance of labour reformation that emerged

through the Commission’s Reforms in 1979.21 This led to numerous amendments to labour

legislation which for the first time endowed all employees with equal rights irrespective of

race.22 Copious legislation have since then been enforced to ameliorate labour law.23

1.2. STATEMENT OF THE PROBLEM

South Africa’s Labour Relations Act 66 of 1996 (hereafter referred to the LRA) has been

declared as one of “the world’s most progressive labour legislation[s]”.24 However, in the light of

the volatile strike action that has threatened to cripple the country over recent years,25 industrial

action which is the uniting of workers as a fortified front has been replaced by generating fear

and causing destruction.26 This necessitates a closer examination of South Africa’s labour

legislation in order to critique how effective it is in regulating industrial action. If indeed South

Africa’s labour legislation can be described as one of the most advanced, surely strike action

which is constitutionally enforced for all South African workers27 should not be described as a

“massacre”?28

The progression of South Africa’s labour legislation has become a superstructure built upon

legislature’s response to industrial action.29 This is evident in the gruesome 1922 Rand Rebellion

which sowed the seed for the promulgation of the Industrial Conciliation Act 11 of 1924

(hereafter referred to as the Industrial Conciliation Act).30 Due to the Industrial Conciliation

20 ibid 4. 21 J F Myburgh ‘100 years of strike law’ (2004) 25 ILJ 964. 22 M Wiseman ‘Recent South African labour legislation: Assessing the new rights of black workers’ (1986) 179 Boston College International & Comparative Law Review 163. 23 M Budeli ‘Workers’ right to freedom of association and trade unionism in South Africa’ (2009) 15(2) Fundamina: A Journal of Legal History 14. 24 R Welch ‘Rights to strike in UK and SA law: A comparison’ (2000) 26 International Union Rights 26. 25 D T Masiloane ‘Guaranteeing the safety of non-striking employees during strikes: The fallacy of policing’ (2010) 23(2) Acta Criminologica 35. 26 P Zulu ‘Reflections on mass action, ethics and rationality’ 2009 African Journal of Rhetoric: Moments of Engagement- Power, Rhetoric and Protests 207. 27 R Venter Labour Relations in South Africa (2006) 44. 28 C Chinguno ‘Marikana: fragmentation, precariousness, strike violence and solidarity’ (2013) 40(138) Review of African Political Economy 639. 29 Muburgh (note 21 above; 962). 30 Act 11 of 1924.

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Act’s exclusion of blacks from its definition of an employee,31 blacks remained excluded from

trade union membership and the use of industrial action for 55 years. Even though white trade

unions were permitted registration,32 their right to engage in strike action was severely

constrained by the dispute resolution system of the industrial councils.33

The transition from oppression to democracy ultimately led to the enactment of numerous

legislation intended to protect employees by extending various rights and implementing

frameworks to address the consequences of century long inequalities.34 The Constitution

entrenches labour rights and most significantly the right to strike,35 while the LRA provides an

extensive framework to govern dispute resolution and affords organisational rights as well as the

right to strike. The LRA’s implementation of bargaining councils have been effective, however,

it has encountered a number of challenges, mainly due to the deficiency of additional

programmes to enforce successful bargaining.36 Since these enactments, labour relations have

undergone fundamental changes to employment.37

It is therefore necessary to emphasise that trade unionism and its active involvement in strike

action have been fundamental in shaping labour relations. Even years into democracy, strike

action still demands the attention of the employer.38 It has to be conceded that strike action is

predictable, as it is the ultimate weapon workers can utilise to protect their interests.’39 This in

turn has resulted in a dramatic increase in strike action over the years, which has had drastic

consequences for the country at large. This dissertation will not question the function or purpose

of industrial action, but rather it will seek to analyse the reasons why violent strike action has

escalated over the years in the light of legislation.

31 s 1. 32 M Uys ‘Factors Influencing the Future Existence of Trade Unions in South Africa’ (unpublished LLM thesis, University of the North-West, 2011) 4. 33 D S Harrison Collective Bargaining Within the Labour Relationshipin a South African Context (unpublished LLM thesis, University of the North-West, 2004) 24. 34 P Benjamin ‘Labour market regulation: International and South African Perspectives’ HSRC Employment and Economic Research Program (2005) 41. 35 The Constitution; s 27. 36 S Godfrey, J Theron & M Visser ‘The state of centralized bargaining in South Africa: An empirical and conceptual study of collective bargaining’ DPRU Working Paper 07/ 130 (2007) [4]. 37 Cohen (note 17 above; 2210). 38 G Murwirapaechena ‘Exploring the incidents of strikes in post-apartheid South Africa’ (2014) 13(3) International Business & Economics Research Journal 553. 39 M A Chicktay ‘Placing the right to strike within an international framework’ 2006 27(2) Obiter 346.

5

The violence which accompanies strikes is increasingly disturbing. When procedures

implemented for dispute resolution are ignored, court interdicts disregarded and strikers engage

in intimidation and violence to assert their claims, it is quite blatant that South Africa needs to

evaluate the effectiveness of the policies and procedures it has enforced to regulate dispute

resolution.40 Even more alarming is that strike action used today to assert demands, are compared

to those which occurred prior to the promulgation of the Constitution. This begs the question of

whether South Africa’s progress is merely inscribed in policy rather than practice.

1.3. OBJECTIVES OF THE STUDY

This research is intended to be an evaluation of the effectiveness of the LRA in managing and

supervising the implementation of the right to strike. The dissertation acknowledges that there

are many contributing factors that cause violence and unwarranted illegal conduct of strikers

such as inequality between races which have been inherited from apartheid, poverty and social

deficiencies, union rivalry and unemployment to name a few.41 However, this dissertation will

not engage in any discussion pertaining to the above mentioned contributing factors. The main

objectives of the study are as follows:

The dissertation will analyze the effectiveness of the provisions of the LRA and how

successful it has been in managing and preventing illegal and violent strike action.

The dissertation will also consider the possible pitfalls of the provisions of the LRA as

well as the interpretation of such provisions by the Judiciary which could be probable

contributors to the increase in violent strike action.

The dissertation will also provide recommendations on how the LRA could help decrease

strike violence.

40 C Bosch … et al The Tokiso Report on the State of Labour Dispute Resolution in South Africa (2013) 17. 41 G Murwirapechena & K Sibanda ‘Exploring the incidents of strikes in post-apartheid South Africa’ (2014) 13(3) International Business & Economics Research Journal 554.

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1.4. RELEVANCE OF THE STUDY

Firstly, cognisance must be given to the fact that the Constitution provides all workers with the

right to strike among other labour rights.42 The constitutionalisation of the right to strike is the

recompense for the militant stance organisations adopted, which has culminated in the right to

engage in strike action as well as to promote democracy.43 Additionally, the Constitution also

enforces basic human rights enshrined in chapter 10. However, recent strikes have seen essential

services come to a devastating halt with chronic patients not attended to and urgent surgeries

completely disregarded in hospitals.44 Furthermore, due to the fact that intimidation and violence

are so frequent during strike action it has “been established as a tradition”.45

For instance, the strike in 2010 caused essential services to come to an abrupt standstill and court

interdicts to be defied. This was an unequivocal violation of s 71(10) of the LRA. In 2011, the

engineering strike resulted in workers using intimidation and violence to canvass through

factories to prevent non-striking workers from carrying on employment.46 During the Marikana

strike, 34 striking platinum miners were mercilessly shot to death leaving homes without

incomes and robbing families of their fathers and husbands. This repulsed the country and sent

shock waves through the international world while taking on the title of a massacre, likened to

the Soweto uprisings.47 This is indeed a calamitous problem. It is unacceptable that legislation,

which endorses basic human rights, should also contain a right which infringes upon such human

rights. This is evidently not the intention of legislature and should not be deemed acceptable, as

the right to strike is essential to the implementation of freedom and democracy48 and should not

contravene the very purpose it seeks to uphold.

Secondly, the LRA provides a regulatory framework which outlines the procedures for collective

bargaining and effective dispute resolution. Additionally, it provides a list of workers who may

42 The Constitution; s 27. 43 B Hepple‘The right to strike in an international context’ available at http://www.law.utoronto.ca/documents/.../- StrikeSymposium09-Hepple.pdf, accessed on 2 June 2015. 44 TR Mle ‘A critical analysis of the 2010 Public Service strike in South Africa: A service delivery approach’, available at http://www.sabinet.co.za/webx/access/electronic/.../jpad-v47-ni-si1-a7.pdf, accessed on 13 April 2015. 45 P Benjamin ‘Assessing South Africa’s commission for conciliation, mediation and arbitration (CCMA)’ Working Paper No. 47 (2013) 35. 46 Bosch (note 40 above; 17). 47 P Alexander ‘Marikana, turning point in South African history’ (2013) 40(138) Review of African Political Economy 611. 48 Matee (note 9 above; 1).

7

not engage in strike action, and if such workers do engage in strikes then such action will be

unprotected. However, the mere fact that numerous strikes have been characterised by brutality

and are unprotected, illustrates that there is a discrepancy between what policy strives to achieve

and the veracity of industrial action.

This is indeed concerning, as our legislation cannot be deemed to be advanced on the one hand

while on the other hand reality negates the core moral values legislation intends to implement. It

is therefore essential that this dissertation not only evaluate current legislation in its regulation of

strike action, but also posit amendments where defects exist, as well as suggestions on how

policies and procedures should be implemented to ensure compliance.

1.5. RESEARCH QUESTIONS

How has industrial action contributed to the development of South African labour

legislation before and after the promulgation of the 1996 Constitution?

What are the policies which regulate the employment relationship between employer and

employee?

More pertinently, are they adequate in preventing conflict from escalating into strike

action?

Is the recent epidemic of strike action indicative of the flaws in legislation’s competence

in regulating strike action?

If indeed there are such flaws in our legislation, what can be done to amend these laws in

order to prevent a recurrence of past events?

1.6. METHODOLOGY

This is a desktop study and the compilation of this dissertation will include visits to various

libraries to consult information resources as well as the extensive uses of the interlibrary loan

facility are envisaged. Numerous sources will be utilised in writing this dissertation, which

include both South African and international sources such as books, journal articles, conference

papers, cases and articles.

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1.7. TIME FRAME FOR THE COMPLETION OF THE DISSERTATION

The work on this dissertation began in 2015 and it is envisaged that it will be completed in 1

year.

1.8. OUTLINE OF THE CHAPTERS

In chapter 2 the dissertation will begin with a discussion on the development of labour legislation

which led to the endorsement of the right to strike. In chapter 3 the dissertation will then go on to

elaborate on the international laws and international instruments that protect and regulate the

right to strike. Chapter 4 will then go on to discuss the entrenchment of fundamental labour

rights that are enshrined within the LRA. Chapter 5 will focus on the regulation of strike action

and the various methods that the LRA endorses to eliminate and deter illegal strike action.

Chapter 6 will illustrate the recent strike action that has plagued our country as well as suggest

possible solutions which would decrease violent and unprotected strike action. In conclusion, the

dissertation will summarize the significant aspects of the discussion and will provide concluding

remarks on a way forward for the country.

9

CHAPTER TWO

THE HISTORICAL DEVELOPMENT OF LABOUR LEGISLATION

2.1. INTRODUCTION

“The freedom of employees to combine and to withdraw their labour is their fundamental safeguard against the inherent imbalance of power between the employer and the individual employee. This freedom has been accepted as a hallmark of a free society”.1

In order to fully appreciate the right to strike within our free society, one has to take cognisance

of its progression over the centuries. It is trite that the right to strike has been postulated as

necessary to enforce fairness within the collective bargaining system.2 However, the role of

industrial action far exceeds its mere purpose within labour relations.3

Firstly, it is imperative to state that historically South African labour relations were established

upon a system of gross inequality.4 Therefore, it is within this system that the pertinence of

industrial action is highlighted, as the effort to obtain rights for workers has always been and

continues to be placed within an extensive framework of ideological and basic human rights

battle.5 It has become quite common for workers to make certain demands within their

employment circumstances that they now see manifest within the political sphere.6 Significant

amendments to South Africa’s policies have fueled Government’s attempts to address the socio-

political deficiencies of the country.7

1 J Bowers & M Duggan The Modern Law of Strikes (1987) 1. 2 A Bogg The Democratic Aspects of Trade Union Recognition (2009) 256. 3 M A Chicktay ‘Placing the right to strike within a human rights framework’ (2006) 27(2) Obiter 348. 4 V Mbungu ‘Positive discrimination in South African employment law: Has affirmative action overstayed its welcome’ (unpublished LLM thesis, University of KwaZulu- Natal, 2013) 1. 5 R Bernikow ‘Ten years of the CCMA- An assessment for labour’ DITSELA (Western Cape) Labour Law Seminar (2007) 13. 6 T Novitz International and European Protection of the Right to Strike (2003) 57. 7 G M Ferreira ‘The development of South African labour law for the past ten years (1994-2004)’ (2005) 24(2) Politeia 17.

10

The trade union movement has been fundamental in structuring the political and socio-economic

policies of South Africa.8 It is therefore fundamental to emphasise the role of South African trade

unions9 and their alignment with political organisations that have largely contributed to the

egalitarian society we live and work within.10 It is even more crucial to accentuate the role of

labour legislation and its progression despite the oppressive laws enacted to repress race groups

in the past. However, legislation has not been enforced simply upon the request of workers, but

rather it is the significance of strike action and its crippling effect on the economy, which has

largely contributed to attracting Government’s rapid response to changing legislation over time.

It is for this reason that the evolution of strike action cannot be mentioned without referring to

the epoch of apartheid.

This chapter deals exclusively with the evolution of labour law within the repressive regime of

apartheid. It firstly explicates the inception of South Africa as a Union and the beginning of

industrial labour in South Africa. It further discusses the birth of the first trade union as well as

the earliest noted strike actions, which saw Government enforcing legislation to contain disputes.

Secondly, the chapter goes on to discuss the establishment of the country as a Union and the

initiation of oppressive legislation. This era sees the rise of white supremacy and the violent

clashes by black workers against apartheid labour laws.

Thirdly, the chapter elaborates on the rights of workers within the apartheid regime. It becomes

apparent that the role of legislation was merely to facilitate the agendas of Government in

maintaining white dominance. Finally the chapter discusses the radical changes which initiated a

reformation within labour law as well as the country as a whole.

In order to comprehend where our country is going, one firstly has to acknowledge where we

have come from.

8 G Murwirapachena ‘Exploring the incidents of strikes in post apartheid South Africa’ (2014) 13(3) International Business & Economics Research Journal 553. 9 C Twala & B Kompi ‘The Congress of South African Trade Unions (COSATU) and the tripartite alliance: A marriage of (In) Convenience? HASA Conference (University of the North- West) Reflecting on the 25 years of COSATU (1985-2010) (2010) 174. 10 B Hepple ‘The Right to Strike in an international context’, available at http//:www.law.utoronto.ca/documents-/conferences2/strikeSymposium09-Hepple.pdf, accessed 5 July 2015.

11

2.2 THE INCEPTION OF THE UNION OF SOUTH AFRICA

2.2.1. The period between the years 1652 and 1910

In 1652 the Dutch East Indian Company11 was established by the European settlers when they

descended upon the shores of South Africa along with a small number of unskilled slaves.12 In

1658 there was a great need for labourers, which necessitated shipments of slaves from areas

such as Angola, Guinea Coast and in subsequent years as the need arose, from southern India,

Ceylon, Indonesia and Madagascar.13 Slavery was the backbone of the labour industry of South

Africa.

In 1809 the slave trade was legally abolished.14 However, the concept of slavery still existed,15

and only in 1934 did South Africa formally abolish slavery. As a result thereof, Government

passed non-racial legislation to regulate the rights and functions between master and servant.16

Legislation was however merely to prescribe the duties of the employer and worker as no

struggle for power existed between the parties. The trade union movement was insignificant

during this time; as such a need did not present itself.17 This was to change through the industrial

revolution.

The nineteenth century marked the inception of the country’s industrial development as a result

of the gold and diamond discoveries,18 which consequently led to the establishment of the

mining industry19 as well as other industries necessary to sustain the mining industry. The

11 G W Mukundi South Africa: Constitutional, Legislative and Administrative Provisions Concerning Indigenous Peoples (2009) 10. 12 D Nupen ‘Constitutionalism and Political Stability in South Africa’ (2004) 4(2) African Journal on Conflict Resolution 120. 13 G H Le May Black and White in South Africa: The politics of Survival (1971) 5, F Wilson Labour in the South African Gold Mines 1911-1969 (1972) 1. 14 N J Rhoodie Apartheid and Racial Partnership in Southern Africa (1969) 13. 15 H Corder, N Hayson & P Malherb Focus on the History of Labour Legislation (1979) 29. 16 M Budheli ‘Workers’ right to freedom of association and trade unionism in South Africa’ (2009) 15(2) Fundamina: A Journal of Legal History 2. 17 M Kittner, M Korner- Dammann & A Schunk Labour Uunder the Apartheid Regime- Practical Problems and the Legal Framework of Labour Relations in South Africa (1989) 3 18 J S Saul & S Gelb The Crisis in South Africa: Class Defense, Class Revolution (1981) 10, W H Thomas The Socio-Political Structure of the South African Economy-its Dynamic Perspective in South Africa: Industrial Relations and Industrial Sociology (1979) 6. 19 F A van Jaarsveld From van Riebeeck to Vorster 1652-1974 (1975) 159.

12

development of gold mining necessitated the procurement of labour.20 South Africa possessed a

majority of Asian and Black unskilled labourers.21 This was insufficient for the demand required

by these emergent industries22 therefore skilled European, American as well as Australian

labourers were brought in to fill the gap.23 Trade unionism is essentially a British concept,24 and

it is with these immigrants that the first trade unions of South Africa were initiated.25 It is

significant to draw attention to the fact that Asians and blacks constituted the vast majority of

unskilled labourers, who were unrepresented by trade unions.26

As a result of the displacement of black labourers during the Anglo-Boer War, which took place

between 1899 and 1902,27 many black labourers did not return to the mines after the war.

Therefore an urgent need for labourers arose. This precipitated the immigration of Chinese

workers. However, due to a number of conflicting issues that presented itself, the repatriation of

these immigrants was compelled by Government.28 The beginning of the 1900’s experienced an

endemic of impetuous strike action as a result of dissatisfaction in working conditions.29 These

strikes are pertinent to the development of labour legislation as they resulted in Government’s

hasty efforts to contain the aggressive stance that these workers had taken by implementing

various laws.30 Although legislation was futile in curtailing the torrent of strikes that threatened

to wreak havoc during the early 1900’s,31 these enactments ultimately restrained workers from

trade unionism and strike activity for over a decade. These early strikes included the 1907 and

20 S Dubow Racial Segregation and the Origins of Apartheid in South Africa, 1919-36 (1989) 55. 21 R Garrans The Government of South Africa (1908). 22 R A Jones & H R Griffiths Labour Legislation in South Africa (1980) 1. 23 W P Visser ‘White labour aristocracy and black proletariat: The origins and development of South Africa’s racially divided working class’, available at http://sun025.sun.ac.za/portal/page/portal/Arts /Departmente1 /geskiedenis/docs/white-labour-aristocracy.pdf , accessed 5 July 2015. 24 ‘Reform vs Oppression: The impact of Wiehahn Commission on Labour Relations in South Africa,’ available at http://fbcdn-profile-a.akamaihd.net/hprofile-ak-xfh/v/f1.0-1, accessed 2 June 2015. 25 M Budeli ‘Trade unionism and politics in Africa: The South African experience’ 2012 CILSA 460. 26 E Hellmann Handbook on Rrace Relations in South Africa (1949) 109. 27 A Venter South African Government and Politics (1989) 37. 28 F A Johnstone Class, Race and Gold: A Study of Class Relations and Racial Discrimination in South Africa (1976) 29-30. 29 E Manamela & M Budeli ‘Employees right to strike & violence in South Africa’ (2013) 46(3) CILSA 10. 30 J Riekert & J Grogan Riekert’s Basic Employment Law (1987) 3. 31 J F MyBurgh ‘100 years of strike law’ (2004) 25 ILJ 962.

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1913 miners’ strikes, the railway and printer’s strike in 1911, as well as a general strike which

took place in 1914.32

The general strike of 1914 was an extension of the 1913 strike, which led to the enactment of

further legislation that sought to stifle strike action. On 14 January 1914, Government declared

martial law and ordered the arrest of many labour leaders, as well as the deportation of nine

strike leaders. These actions were supported by Parliament, and made possible by the

promulgation of the Indemnity and Undesirables Special Importation Act.33 Government

presented the Peace Preservation Bill to Parliament in 1914, which effectively abolished workers

rights to engage in strikes, picketing and abdicated all forms of freedom of speech and assembly.

This was strongly opposed and resulted in the enactment of the Riotous Assemblies and Criminal

law Act34 which banned the forced enrollment to unions, violent forms of strike action and

picketing, along with an absolute ban on strikes within public service functionaries, as well as

increasing the level of control of law enforcement.35

Government made further efforts to address the turmoil within industrial labour law by enacting

the Workman’s Compensation Act36 along side the Riotous Assemblies and Criminal Law

Amendment Act,37 which sought to increase the states’ control on the disorder initiated by public

persons and trade unions.38 These enactments were a direct result of the early strike action during

the 1900’s which sought to prevent future anarchy caused by industrial action. A significant

progression in legislation was the Industrial Disputes Prevention Act39 which pioneered South

Africa’s first system of conciliation. It applied only to mining, engineering and metal sectors,

essential municipal services and the building industry. The Industrial Disputes Prevention Act

excluded black and Asian workers and employers who employed less than ten white workers.40

32 W P Visser “To fight the battle of the workers” : The emergence of pro-strike publications in early twentieth-century South Africa’ (2004) 49(3) International Review of Social History 402. 33 Act 1 of 1914. 34 Act 27 of 1914. 35 W P Visser ‘The South African labour movement’s responses to declarations of martial law, 1913-1922’ War and Society of Africa Conference, South African Military Academy (2001) 13. 36 Act 27 of 1914. 37 Act 25 of 1914. 38 Visser (note 35 above; 13). 39 Act 20 of 1909; s 5(2) 40 J Simons & R Simons Class and Colour in South Africa 1850-1950 (1983) 95.

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The Industrial Disputes Prevention Act stipulated that if employers intended to make any

amendments to the terms and conditions of the employment relationship, a month’s notice of

such changes was required.41 Where an employee disagreed with such changes, and only if the

proposed changes affected ten or more of the employees of the enterprise, a conciliation and

investigation board would be assigned in terms of the Industrial Disputes Prevention Act.42 It is

imperative to note that the dispute resolution framework created under the Labour Relations Act

66 of 1995 (hereinafter referred to as the LRA) is very similar to that created under the Industrial

Disputes Prevention Act, as both of these enactments provide for parties to engage in

conciliation regarding disputes of interest, such as terms and conditions of employment.

Where disputes arose regarding terms and conditions of employment, the board would be

charged with the responsibility of investigating the conflict and providing a report on their

findings. These findings were not regarded as obligatory, but rather consultative.43 Under the

Industrial Disputes Prevention Act, strike action was permissible. However, this right of recourse

was only available once the investigative board had given its report on the conflict and when

independent action to resolve the dispute by the parties had come to an end.44 The Industrial

Disputes Prevention Act was pivotal to the progression of labour rights as it afforded workers the

lawful means of countering the dictates of employers. Instead of merely accepting conditions of

employment, the Industrial Disputes Prevention Act provided for a legal means of negotiating

disagreements through the establishment of the conciliation and investigation board. In addition,

strike action as early as 1909 was recognised by legislature as a social power that could be used

to induce employers into submission when conciliation was unsuccessful.

It is essential to note that as early as 1909 conciliatory bodies similar to those created under the

LRA were formed to settle disputes. Even though these councils differed in that their findings

were not obligatory in contrast to the binding nature of collective agreements reached through

the bargaining councils,45 they are comparable in terms of the purpose their existence seeks to

fulfill which is to resolve disputes and issues relating to terms and conditions of employment.46 It

41 Act 20 of 1909; s 5(1) 42 Act 20 of 1909; s 25. 43 Act 20 of 1909; s 25. 44 Act 20 of 1909; s 6(1). 45 Act 66; s 31. 46 J Grogan Collective Labour Law (2007) 83.

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is also worth mentioning that strike action from the early 1900’s was used as a mechanism to

assert demands on employers. When one seeks to understand the essence of strike action, one

becomes aware that regardless of the era in which strike action originated, the purpose for which

it exists pervades through generations.

2.3. THE RIGHTS OF WORKERS UNDER THE APARTHEID REGIME AND THE

PROGRESSION INTO DEMOCRATISED SOCIETY (1910-1948)

2.3.1. The period between the years of 1910-1948

In 1910, due to the convergence of the various railway systems,47 the previous Boer Republics in

the Transvaal and the Orange Free State as well as the Cape and Natal British colonies emerged48

to form the Union of South Africa.49 A constitution was adopted by the country which placed all

inhabitants under British rule. Those who did not comply with the normative standards of

European rule were deemed to be subjects of administration.50 The constitutionalisation of white

supremacy was an indication to blacks that white aristocracy was not willing to enforce

equality.51

The concept of white dominance and black oppression was well established by 1910, and until

the latter part of the twentieth century altered very little in its intents and purposes.52 The Union

was able to implement the edifice of the 'colour bar' through the enactment of various racial laws

structured for the specific oppression and exploitation and subjugation of the black race.53 The

ideology of racial segregation and political control established the foundation of the

superstructure of the labour framework.54

47 H M Robertson South Africa: Economic and Political Aspects (1957) 83. 48 South African Information Service ‘Progress through separate development: South Africa in peaceful transition’ 2nd ed (1968) 35. 49 L Van der Walt ‘The first globalisation and transnational labour activism in Southern Africa: White labourism, the IWW, and the ICU, 1904-1934’ (2007) 66(2-3) African Studies 225. 50 D J van Vuuren … et al Change in South Africa (1983) 2. 51 South African Human Rights Commission Reflections on Democracy and Human Rights: A Decade of the South African Constitution (Act 108 of 1996) (1998) 2. 52 R M Price The Apartheid State in Crisis: Political Transformation in South Africa, 1975-1990 (1991) 3. 53 W P van Schoor ‘The origin and development of segregation in South Africa’ A. J Abrahamse Memorial Lecture (1951) 18. 54 S Terreblanche A History of Inequality in South Africa 1652-2002 (2002) 247.

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White labour leaders were some of the first political leaders to welcome segregation policies.

These labour leaders were compelled to respond to the white labourer’s concerns that black

workers would replace the unskilled white. Therefore, out of fear the white labourer demanded

segregation55 and Government willingly complied with their demand through the promulgation

of discriminatory legislation. In 1911, the Mines and Wage Act56 was passed which formed the

cornerstone on which further discriminatory policies would be implemented.57 The Mines and

Wage Act effectively sought to enforce the reservation of job categories specifically for white

workers.58 It applied broadly to not only the mining industry but also to the tramways,

infrastructure and construction sectors.59 The Mines and Wage Act effectively provided that

workers possess competency certificates in order to occupy skilled positions within the mines.60

In addition, such competency certificates were not to be issued to non-Europeans in the

Transvaal and Free State provinces.61

However, if such competency certificates were issued in any other province, these would

consequently be denied acknowledgement in the Transvaal and Free State provinces.62 This

legislation was implemented to stifle the progression of the black worker by ensuring that blacks

only undertook menial labour. It is submitted that the effect of this legislation restrained black

workers as unskilled labourers. It is imperative to reiterate that the South African economy was

at its peak during the early 1900’s as a result of the gold and diamond discoveries. Consequently,

employers required an abundance of labour at a cheap rate. This led to the enactment of further

legislation in favour of the white employer.

The Native Labour Regulations Act63 was promulgated to fortify the grip on black labour by

ensuring that these workers were more economical to obtain and keep hold of, as black

workers formed the perennial of cheap and unskilled workforce.64 The Native Labour

55 Dubow (note 20 above; 57). 56 Act 12 of 1911. 57 Jones & Griffiths (note 22 above; 3). 58 B Dollery ‘Labour Apartheid in South Africa: A rent seeking approach to discriminatory legislation’ (1990) 29(54) Australian Economic Papers 118. 59 ibid 118. 60 J A Cruise ‘The gender and racial transformation of mining engineering in South Africa’ (2011) 111 The Journal of The South African Institute of Mining and Metallurgy 218. 61 Regulation 99 of Mines and Works Act. 62 Regulation 285 of Mines and Works Act. 63 Act 15 of 1911. 64 R I Rotberg & J Barratt ‘Conflict and Compromise in South Africa’ (1980) 90.

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Regulations Act stipulated that a written contract had to be concluded as well as attestation to

take place before a judicial officer such as a magistrate.65 Employers were explicitly

prohibited from coercing employees for reasons such as higher salaries or benefits “to desert

or to break any binding contract”.66 In addition, employees themselves were held criminally

liable if they failed to carry out the terms of the employment contract without a lawful

reason.67

This is quite evident in the case of R v Smit,68 where the court dealt with the common law

approach to strike action and held that a strike is essentially the refusal to continue work, which

constitutes a breach on the part of the employee in his contract. The employer in such

circumstances is entitled to cancel the employment contract and dismiss the employee without

prior notice. Therefore, following from the Native Labour Regulations Act as well as case law, if

black employees embarked upon strike action it would have been regarded as a breach in his

employment contract and he would be dismissed without a right of recourse. Black workers thus

lacked a crucial element in dispute resolution as they could not use strike action as a threat to

employers.

Even though black labourers approached racial policies with much resistance, this resistance was

not successfully expressed through labour movements.69 A significant trade union that arose in

the early 1900’s was the South African Native National Congress (SANNC) which was the

forerunner of the African National Congress (ANC). The constitution that was adopted in 1910

initiated the same militant stance the (SANNC)70 had taken against the reservation of thirty-two

job specifications for white labour. Thus, the SANNC gained the support of black workers.71

Even though the SANNC remonstrated against the exclusion of rights pertaining to voting, as

well as many others laws, this, however, proved futile as segregation policies continued all the

more.72 Consequently, there was a desperate cry among black workers for a voice that would

65 G Orde-Browne The African Labourer (1967) 179. 66 Act 15 of 1911; s 13(c). 67 Act 15 of 1911; s 14 (1) (C). 68 R v Smit 1995 (1) SA 239 (C) 98. 69 C Fenwick, E Kalula & I Landau ‘Labour Law: A Southern African Perspective’ Discussion Paper Series No. 180 (2007) [4]. 70 C Landsberg ‘100 Years of ANC foreign policy’ (2012) 35 The Thinker 25. 71 Van der Walt (note 56 above; 56). 72 M Finnemore Introduction to Labour Relations in South Africa 8thed (2002) 19.

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speak on their behalf against these injustices. This cry was thought to be heeded to in the

formation of the Industrial and Commercial Workers’ Union (ICU).

The year 1918 was when the first black workers’ union took root under the leadership of General

Secretary Clemens Kadalie.73 The ICU was the most prominent union to be established on the

African continent74 and by the latter part of the 1920’s over 100 000 members constituted the

ICU.75 However, regardless of its large membership by 1931 the union had become a vapor in

the wind and could not survive as a result of ineffective leadership, poor administration and

external stress placed upon it.76 In contrast to black unions during the 1920’s, white unions

flourished. In 1920, the British Amalgamated Society of Engineers combined with smaller craft

unions to become the Amalgamated Engineering Union. The exclusion of black workers branded

them as ‘pseudo-craft’ unions.

The term ‘pseudo’ essentially denotes something that is pretentious and false.77 It must be noted

that the progression of initial craft unions was based on the skills of its members. Therefore, it

has been argued that these unions represented themselves as skilled workers within labour

sectors to intentionally exclude black workers who by tradition and as a result of the Mines and

Wage Act were regarded as unskilled labourers.78 This effectually allowed white workers to

advance over their black counterparts. Thus, white craft unions were an illusory pretense of

skilled workers unions as they implemented a strategy to racially segregate black workers.79

Although early trade unions had devised the strategy to exclude blacks on the basis of skills,

unions formed after 1945 progressed with the assistance of employers and Government to secure

their elite position by the promulgation of legislation.80

The 1930’s experienced a surge in black unionism across various industries. This was strongly

opposed by the Chamber of Mines who feared that the organisation of black unions within

prominent industries would be extended to the mines. This stance continued well after the

73 C Kadalie My Life and the ICU (1970) 11. 74 E Webber Essays in Southern African Labour History (1978) 114. 75 J A Grey Coetzee Industrial Relations in South Africa: An Event Structure of Labour (1976) 6. 76 T Lodge Black Politics in South Africa Since 1945 (1983) 8. 77 P Alexander Workers, War & the Origins of Apartheid: Labour & Politics in South Africa 1939-48 (2000). 78 L Switzer South Africa’s Alternative Press: Voices of Protest and Resistance, 1880s-1960s (1997) 271. 79 J Lewis Industrialisation and Trade Union Organisation in South Africa, 1924-55: The Rise and Fall of the South African Trades & Labour Council (1984) 109. 80 ibid 88.

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Second World War and eventually led to the establishment of the African Mine Workers’ Union

in 1941. However, the union was constantly restrained by the Chamber and the arrest of

organisers.81 White workers within the mines were protected by the dependence capital had on

their skills. This secured and justified their significantly high salaries. Therefore, when capital

realised that black workers could undertake the same work for a relatively lower wage, white

workers had lost their bargaining foothold.82

The disposition around the mining industry during the 1920’s was highly volatile as mine owners

began to submit white workers to harsh conditions of employment and a threat of a reduction in

salaries.83 Suffice it to say that the sole reason white labourers enjoyed the benefits of high

salaries was at the exploitation of their lowly remunerated black counterparts.84 However,

beneath the security of white labour lay a deep under-current of a ‘big financial view’, which

saw the Labour Party (LP) favouring the mass of economical black labour in comparison to the

well paid white workforce.85 The LP’s financial strategy basically entailed that the expense of

wages in mines would be substantially reduced if lowly paid black workers replaced highly paid

white workers. This sought to benefit the country’s financial position as this would ensure that

costs would be significantly cut back, because black workers would undertake the same job as

white workers but only for a fraction of the cost of wages for a white worker. This was the white

workers' most dreaded fear that would soon become reality.

The walls of white labour began to crack and both skilled and unskilled white labourers were

rendered vulnerable. Skilled white labourers feared their replacement by the black labourer,

whereas semi-skilled white labourers were threatened by restrictions on job specifications.86 This

in turn would culminate in defensive measures to protect their interests, such as the use of

industrial action.87 In 1920, hostilities intensified when recommendations were made by the Low

81 L Flynn Studded with Diamonds and Paved with Gold: Miners, Mining Companies and Human Rights in Southern Africa (1992) 206-207. 82 P C W Gutkind, R Cohen & J Copans African Labour History (1978) 37. 83 C R D Halisi Black Political Thought in the Making of South African Democracy (1999) 40. 84 G W Shepherd, Jr. Anti-Apartheid: Transnational Conflict and Western Policy in the Liberation of South Africa (1977) 5. 85 H Brotz The Politics of South Africa: Democracy and Racial Diversity (1977) 7. 86 S Godfrey…et al Collective bargaining in South Africa: Past, Present and Future? (2010) 18. 87 B P S van Eck & S R van Jaarsveld Principles of Labour Law (1998) 10.

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Grade Mine Commission to eliminate job reservations for white workers.88 This decision would

effectively open positions within the mines, thereby allowing black works the opportunity of

placement of certain jobs specifically reserved for white workers only. The protection white

workers received were a result on the dependency on their race. Therefore, the elimination of job

reservations for white workers essentially eliminated the white worker’s protection.

In 1922, there was a decision to retrench white miners who were semi-skilled in an attempt to

save on wages.89 This ignited a bloodbath of violent insurrection in the Witwatersrand. This

became branded as the Rand Rebellion and lasted approximately three months.90 The Rand

Rebellion was known as South Africa’s largest strike, which involved over 22 000 participants

and was the most gruesome to ever occur in labour history.91 The strike caused grievous harm,

which included the death and injury of many workers.92

However, it was the Rand Rebellion that drew cognisance to the lack of adequate attention being

given to labour legislation. This was quite evident in the enactment of the Mines and Works

Amendment Act,93 which sought to ensure greater regulation of the mines in an attempt to

prevent strikes such as the Rand Rebellion.94 The country’s poor white problem, which was

caused by the retrenchment of unskilled whites, required the exclusion of black workers and the

inclusion of white unskilled workers at a wage given to semi-skilled workers. Thus the colour

bar was entrenched through the Mines and Works Amendment Act.95 The Rand Rebellion was

thus essential for future developments which would follow in its wake.

The strike initiated a transformation in industrial labour relations and was instrumental in

establishing the trajectory of South African labour law for two crucial reasons.96 Firstly, white

labourers were able to bring about political change in the country that saw the fall of the Smuts

88 S van der Berg & H Bhorat ‘The Present as a Legacy of the Past: The labour market, inequality and poverty in South Africa’ DPRU Working Paper (1999) 4. 89 MyBurgh (note 31 above; 962). 90 M Visser.‘From MWU to solidarity –A trade union reinventing itself.’(2006) 30(2) SAJLR 2. 91 Manamela & Budeli (note 29 above; 8). 92 A Tolcher ‘How does the 1922 Rand Rebellion reveal the relative importance of race and class in South Africa? (2011) 1 University of Sussex Undergraduate History Journal 6. 93 Act 25 of 1926. 94 Cruise (note 60 above; 217). 95 J Seekings ‘”Not a single white person should be allowed to go under:” Swartgevaar and the origins of South Africa’s welfare state, 1924-1929’ CSSR Working Paper No. 154 (2006) 13-14. 96 J Grogan Workplace Law 7thed (2003) 318.

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Government in the 1924 elections which was to their benefit.97 Secondly, it gave rise to a

‘conciliation system’ established through the enactment of the Industrial Conciliation Act 11 of

1924.98 When the National Labour Party came into power in 1924,99 the Industrial Conciliation

Act was promulgated. This was the country’s first all-inclusive piece of legislation to govern

labour relations.100

As a mechanism of preventing a recurrence of the Rand Rebellion, the Industrial Conciliation

Act was aimed at placating the white worker and enforcing dispute resolution between

employers and employees.101 The Industrial Conciliation Act sought to provide a solution to the

increasingly poverty stricken white class by instilling a system of preferential treatment towards

white workers.102 The Industrial Conciliation Act also recognised strike action within collective

bargaining and necessitated a period of ‘cooling off’ until attempts were made to resolve an

issues through negotiation.103 The Industrial Conciliation Act also made reforms regarding

unions and organisations.

The Industrial Conciliation Act necessitated trade unions and employer’s organisations to be

registered.104 South African trade unions were thus attributed equivalent recognition to unions in

Britain and became legal entities.105 The agreements reached through negotiations created

binding obligations on all constituents within that given industry. In addition, industrial action

could only be utilised once an extensive conciliatory process had been undertaken.106 The most

far-reaching implication of the Industrial Conciliation Act was that for 55 years black workers

were excluded from trade union membership. Even though white trade unions were permitted

97 Finnemore (note 72 above; 20). 98 H G Ringrose The Law and Practice of Employment (1983) 7. 99 Seekings (note 95 above; 3). 100 M Finnemore & R van Rensburg Contemporary Labour Relations 2nd ed (2002) 9. 101 H Bhorat, C van der Westhuizen & S Goga ‘Analysing Wage Formation in the South African Labour Market: The role of Bargaining Council’s DPRU (2007) 3. 102 D du Toit Capital and Labour in South Africa (2010) 94. 103 P Randall Power, Privilege and Poverty (1972) 34. 104 Act 11 of 1924; s 12. 105 Ringrose (note 98 above; 7). 106 D S Harris ‘Collective Bargaining within the labour relationship: In a South African context.’ (unpublished LLM thesis, North-West University, 2004) 24.

22

registration their right to engage in strike action was severely constrained to the dispute

resolution system of the industrial councils.107

Regrettably, however progressive the Industrial Conciliation Act may have been, black workers

were exclusively excluded from it108 as they did not constitute an ‘employee’ under the definition

provided for in the Industrial Conciliation Act.109 The wiliness of legislation ensured that only

registered trade unions participated in collective bargaining and considering black workers were

not permitted to formulate or join registered union,110 Government effectively enforced a dual

strategy to alleviate the “poor white problem” to suppress the black worker.111 Consequently,

there was a need for legislation to regulate workers who did not fall under the Industrial

Conciliation Act.

In 1925 the Wage Act112 was passed as a means of instituting further management and

conciliation mechanisms in labour relations.113 Where industries fell outside the scope of the

industrial council system and where there was an absence of consensus under the Industrial

Conciliation Act, the Wage Act provided for a unilateral decision regarding conditions of

employment and salaries.114 The Wage Act in contrast to the Industrial Conciliation Act was

applicable to black workers.115

The Wage Act had no particular specifications of wage determinations based on race. However,

the Wage Act did insist that the Wage Board take into consideration the daily expense of

labourers as well as the given industry’s ability to afford the pay structure. Even though this was

in place, the Board was able to maneuver through the provisions to benefit white workers.116

107 M Uys ‘Factors influencing the future existence of trade unions in South Africa’ (unpublished LLM thesis, University of the North-West, 2011) 4. 108 N J Rhoodie South African Dialogue: Contrasts in South African Thinking on Basic Race Issues (1972) 298. 109 Act 11 of 1924; s 24. 110 J Maree ‘Trends in the South African collective bargaining system in comparative perspective’ (2011) 35(1) SAJLR 13. 111 A Gwaindepi ‘The developmental state, social policy and social compacts: A comparative policy analysis of the South African case’ (unpublished LLM thesis, Rhodes University) 63. 112 Act 27 of 1925. 113 J V du Plessis … et al A Practical Guide to Labour Law (1994) 51. 114 Jones & Griffiths (note 22 above; 27). 115 Act 27 of 1925, s 1. 116 Corder, Hayson & Malherb (note 15 above; 49).

23

This was indeed contrary to the intention of legislature which “was to secure an employee a

proper minimum wage, commensurate with his qualification and services”.117

In 1930, the Industrial Conciliation Act was amended. The provisions of the Industrial

Conciliation Act 24 of 1930 (hereafter referred to as the Industrial Conciliation Act 1930)

enabled the Minister of Labour to pass resolutions regarding black workers who were excluded

from the Industrial Conciliation Act 1930. These amendments encompassed decisions regarding

workers who were excluded from the definition of an employee enshrined in the Industrial

Conciliation Act 1930.118

In 1934, a commission of enquiry was instituted to examine the Industrial Conciliation Act 1930

and the Wage Act. Based on their findings, the Industrial Conciliation Act 1930 and the Wage

Act underwent further amendments, which resulted in the Industrial Conciliation Act 36 of 1937

(hereafter referred to as the Industrial Conciliation Act 1937).119 The Industrial Conciliation Act

1937 was promulgated to provide a more effective framework for dispute resolution and thus

reduce strike action by workers. However, this in fact had an adverse effect which resulted in a

surge of strike activity. In 1935 Natal experienced an upsurge of trade union movement.

Sporadic strikes took place which involved the Natal Iron and Steel Workers’ Union as well as

other strike action involving factory and coal workers lasting on average between 2 and 16

days.120

However, despite this sporadic strike activity, the most significant strike of this era was the Rand

Rebellion. As a result of the belief that Government was the cause of the volatile censorship of

the strike, by the time of the 1948 elections the country had lost its faith in the Smuts

Government.121 Consequently, this elevated the National Party (NP) into power.122

117Ex Parte Minister of Justice: In re R v Gerstnera 1930 AD 420 at 431. 118 Budheli (note 16 above; 7). 119 Ringrose (note 98 above; 8). 120 H G Ringrose Trade Unions in Natal (1951) 24. 121 H Wolpe Race, Class & the Apartheid State (1988) 62. 122 L Boulle … et al Malan to De Klerk (1994) 9.

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2.3.2. The period between the years 1948-1990

In 1948, the Nationalists (National Party) were elected into power on a platform used to enforce

apartheid123 primarily due to the growing concern white conservatives had124 over the substantial

progress of black workers and their continued propaganda for communist ideologies.125 The

National Party sought to contrive an elaborate framework of legislation to implement the concept

of apartheid. The separation of races was inculcated in all spheres of life.126

In October 1948, the Industrial Relations Commission of Enquiry (the Commission) was

instituted which was led by P. W. Botha. Thus the Commission became known as the ‘Botha

Commission’.127 The Commission was of the view that black workers did not possess the

necessary skills required for the participation in the elaborate labour relations structure.

However, the Commission did suggest that black workers obtain some form of assignment

within the labour system.128

Upon the recommendations of the Commission, the Suppression of Communism Act129 was

passed which sought to suppress trade union movement and further prohibited all forms of

communist propaganda.130 This enactment was a response to the 1946 mine workers strike which

was aimed at weakening black trade unionism. This subsequently led to the banning and arrest of

numerous leaders of black trade unions. This resulted in effective leadership being ousted from

their positions.131 Black unions therefore lacked any form of organisation and strength, thus

reducing their bargaining power substantially.132

Consequently, the obligation of employers to negotiate with such unions was also weakened.133

The Commission also suggested that black trade unions should be permitted to negotiate with

conciliation boards on a pre-condition that the board be chaired by an official of the state and 123 R Schrire South Africa: Public Policy Perspectives (1982) 72. 124 T Karis From Protest to Challenge: A Documentary History of African Politics in South Africa 1882-1962 (1973) 79. 125 M T W Arnheim South Africa after Vorster (1979) 15. 126 A D Lowenberg & W H Kaempfer The Origins and Demise of South African Apartheid (1998) 33. 127 Budheli (note 16 above; 9). 128 Budheli (note 25 above; 469). 129 Act 44 of 1950. 130 B Hepple ‘Is South African labour law fit for the global economy?’ Labour Law Colloquium Mt Fleur (2011) 10. 131 D J van Vuuren & D J Kriek Political Alternatives for Southern Africa: Principles and Perspectives (1983) 74. 132 D Ncube The Influence of Apartheid and Capitalism on the Development of Black Trade Unions in South Africa (1985) 82. 133 Lewis (note 80 above; 136).

25

only if the state consented to the initiation of the board.134 This era was characterised by its

heightened political militancy,135 strikes and stay aways and Government’s response through the

enacting of various security legislation designed to quell any form of resistance towards

apartheid.136 This may have solved the problem of black resistance, but negotiations between

employers and black workers were seriously hampered.

In 1953, the Native Labour (Settlement of Disputes) Act137 (hereafter referred to as the Native

Labour Settlement Act) was passed to regulate employment conditions and for resolving disputes

between black workers and employers.138 Where an enterprise consisted of twenty or more black

workers the Native Labour Settlement Act provided for internal committees. However, the

powers of these committees were limited, as they were consultative in nature, merely to discuss a

conflicting matter that presented itself in the workplace.139 This is evident in P.E. Bosman

Transport Works Committee &others v Piet Bosman Transport (Pty) Ltd,140 where it was held

that the worker committee created under the Black Labour Relations Act had no locus standi,

because it was merely a statutory body possessing limited functions. It could not take up issues

beyond the employer or assume the role of a litigant. Nor could this body acquire any further

powers merely because its constitution authorises such additional powers.141

Additionally, the Black Labour Relations Act142 was promulgated to assist black employees.

The Black Labour Relations Act introduced a dual legal system that sought to work alongside the

Industrial Conciliation Act by protecting the interests of black workers where the Industrial

Conciliation Act 1930 excluded black workers.143 However, even though the Black Labour

Relations Act provided black employees with more labour rights to improve the relationship

134 Budheli (note 16 above; 10). 135 S Welschen The Country We are Supposed to be (2012) 74. 136 G M Carter Which Way is South Africa Going?(1980) 14,T M Shaw & K A Heard Cooperation and Conflict in Southern Africa: Papers on a Regional Subsystem (1977) 202, T Hanf … et al South Africa: The Prospects of Peaceful Change: An Empirical Enquiry into the Possibility of Democratic Conflict Regulation (1981) 257. 137 Act 48 of 1953. 138 A Sampson Black and Gold: Tycoons, Revolutionaries and Apartheid (1987) 105. 139 Act 48 of 1953; s 7. 140 P.E. Bosman Transport Works Committee & Others 1980 (4) SA 801 (T) 67. 141 P.E. Bosman supra at 66F-H. 142 Act 48 of 1953. 143 S T van der Horst & J Reid Race Discrimination in South Africa: A Review (1981) 57.

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between employer and employee, it prevented the registration of black trade unions and

prohibited black workers from the use of industrial council systems.144

In 1956, the Industrial Conciliation Act145 (hereafter referred to as the Industrial Conciliation Act

1956) was endorsed. The Industrial Conciliation Act 1956 further entrenched the separation of

workers based on race, as well as proscribing new unions consisting of both white and coloureds

from being registered.146 It also provided that specific types of work were reserved for people of

particular races.147 The Industrial Conciliation Act 1956 allowed for the formulation of an

industrial tribunal which was tasked with providing recommendations concerning the

enforcement of job reservations for workers.148 However, this legislation also had a major

shortcoming similar to its predecessors.

The Industrial Conciliation Act 1956 specifically excluded black workers from its definition of

an employee.149 Therefore, the Industrial Conciliation Act 1956 provided another mechanism for

enhancing apartheid policies by enforcing stringent control on black trade union movements.150

This was achieved by the banning of multi-racial unions from being registered and required

existing multi-racial unions to divide into unions according to their race.151 It is imperative to

reiterate that black labour formed between 70 to 80 % of South Africa’s workforce. Strike action

by black workers would have had insurmountable consequences on economic activity. Thus,

legislature prohibited industrial action by black workers and even though the formation of black

trade unions was permissible, their registration was denied as a form of control on black

labour.152 The Industrial Conciliation Act 1956 therefore, excluded black workers from the

system of collective bargaining and in doing so effectively established white trade unionism. The

144 W P Visser A Racially Divided Class: Strikes in South Africa, 1973-2004 (2007) 12. 145 Act 28 of 1956. 146 M Swilling Views on the South African State (1990) 46. 147 Act 28 of 1956; s 77. 148 Coetzee (note 75 above; 46). 149 Act 28 of 1956; s 1 defined an employees as, “any person (other than a bantu) employed by or working for, any employer, and receiving or being entitled to receive, any remuneration and any other person whatsoever (other than a bantu) who in any manner assists in the carrying on, or conducting of the business of the employer”. 150 L Douwes Dekker Industrial Relations for a Changing South Africa (1990) 20. 151 Act 28 of 1956; s 77. 152 J de St. Jorre A Home Divided: South Africa’s Uncertain Future (1977) 36.

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employers’ right to dismiss workers who engaged in strike action was enforceable irrespective of

whether the strike was regarded as legal or illegal.153

Even though this legislation was endorsed to advance the concept of apartheid, it was South

Africa’s first statute which comprehensively embodied issues such as workers’ freedom of

association and entrenched trade union rights. It prohibited an employer from preventing an

employee to join a trade union according to their race or any other association of the

employee.154 The Industrial Conciliation Acts sowed the seeds of settling disputes via

negotiation.155 This was to be endorsed through the elaborate system of dispute resolution

enshrined in further legislation.

2.3.3. The initiation of a new labour relations framework between the years 1956 and 1973

In 1956 Government also passed the LRA.156 The LRA provided for the establishment of

industrial councils. These councils performed ‘quasi-judicial’ functions by attempting to prevent

conflicts between parties to the labour relationship through negotiation processes aimed at

concluding agreements.157 The LRA created a special court structure to address issues of unfair

labour practices. These were the Industrial Court, the Labour Appeal Court as well as the

Appellate Division.158

The LRA prescribed a process for collective bargaining. However, it did not provide for a right

to strike but rather for the ‘freedom’ to engage in strike action, on the precondition the dispute

related to an issue of employment. The LRA did not explicitly mention that striking employees

could not be dismissed. This in turn led to a number of unfair dismissal cases.159 Nor did it

prescribe a set amount an aggrieved party could claim for unfair dismissal, which allowed the

Industrial Court to have complete discretion regarding the matter.160

153 MyBurgh (note 31 above; 964). 154 Act 28 of 1956; s 78(1). 155Amalgamated Engineering Union v Minister of Labour 1949 (4) SA 908 (A). 156 Act 28 of 1956. 157 J P A Swanepoel Introduction to Labour Law 2nd ed (1986) 25. 158 Act 28 of 1956; 17(c). 159 J Grogan Workplace Law 6th ed (2001) 9. 160 S Vettori ‘The role of human dignity in the assessment of fair compensation for unfair dismissals’ (2012) 15(4) PER 105.

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The Industrial Court was also entitled to reach a binding agreement enforceable on potential

strikers. Once such an agreement was reached, any strike action taken after this step would have

been unlawful as well. Where no industrial council had jurisdiction over the matter, then an

application had to be brought for a conciliation board to be established. This conciliation board

could either refuse or provide the Minister with a report.161

The case of National Union of Mineworkers (NUM) v East Rand Gold & Uranium162 adequately

elucidates the application of this mandatory requirement. In this case the court was presented

with a situation where the parties were engaged in bargaining over wage increase as the previous

recognition agreement had expired. At the end of the initial negotiations, the parties had not

reached consensus. The union then applied for the establishment of a conciliation board. The

board was appointed and the parties met to discuss the issue, but could not reach a resolution.163

After a strike ballot had been taken and the majority of the members voted for a strike, the strike

began. The court held that,

“strike action was a legitimate corollary of collective bargaining,…discrimination against union members on the basis of their participation in strike action amounted to the imposition of a penalty for striking, an approach which was open to abuse and which had the potential to lead to industrial strife. Such discrimination was not consistent with basic principles of collective bargaining”.164

The LRA also provided for a mediator where industrial council or conciliation boards have

reached a deadlock regarding the dispute. The mediator’s role was to act as a chairman over the

matter and has to use his own persuasive techniques to bring the parties to an agreement.165 The

LRA also provided for voluntary and compulsory arbitration. This process took place when an

industrial council or conciliation board could not reach an agreement and parties did not intend

engaging in strike action or lock-out. The decision of an arbitrator was binding and final on the

parties.166 According to the LRA, strike action initiated while parties were waiting an award by

the voluntary arbitration hearing was deemed unlawful. Registered trade unions, their officials

161 D Davis & H Corder ‘Poverty and co-option: The role of the courts’ Carnegie Conference Paper No. 90 (13-19 April 1984) 6. 162 National Union of Mineworkers (NUM) v East Rand Gold & Uranium (1989) 10 ILJ 103 (IC) 105, see also Mutual & Federal Insurance Co Ltd v Banking Insurance Finance & Assurance Workers Union (1996) 17 ILJ 241 (A), Black Allied Workers Union (SA) v Pek Manufacturing Co (Pty) Ltd (1990) 11 ILJ 1095 (IC). 163 NUM v East Rand Gold & Uranium supra note 162 at 1222D-F. 164 NUM v East Rand Gold & Uranium supra note 162 at 1223A-D. 165 Act 28 of 1956; s 44. 166 Act 28 of 1956; s 45 & 46.

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and employers' organisations as well as their members could not initiate strike action if they were

part of the industrial council, which adopted a constitution stating that matters which were not

decided by the council had to be submitted for arbitration.167

Even where there was no such clause in the council’s constitution, strike action was still not

permissible unless there was a majority vote taken by secret ballot, which favoured the strike

action.168 In terms of the LRA, the Industrial Court was established. The court’s jurisdiction was

laid out in s 17(11) of the LRA. The court was enabled to grant status quo orders regarding

unfair labour practices until a final determination had been made. The Industrial Court played a

significant role within the dispute resolution system as its enforcement of status quo orders was

intended to promote parties to engage in negotiations through conciliation in an attempt to

resolve labour disputes through the process stipulated by the LRA first rather than engaging in

court proceedings or industrial action.169 It was able to hear appeals taken from the industrial

registrar, an employer or his association or even a trade union. The Industrial Court was

therefore classified as a quasi-judicial body that undertook an advisory role.170

The LRA had both a civil and criminal effect with regard to strikes and lock-outs. Firstly, in

terms of civil law a strike’s legality was irrelevant. Therefore, if a worker participated in a strike

he or she could be dismissed for breach of contract on the basis of prolonged absenteeism during

the strike. Workers were not protected against dismissal. Consequently, the dismissal of a black

worker gave way to potential criminal liability. According to the Black (Urban Areas)

Consolidation Act,171 (hereinafter referred to as the Black Urban Areas Act) a black worker

would lose his right to live in an urban area once dismissed by his employer and if he did not

find alternate employment within a specific time he would return to his ‘homeland’. If he did not

return to his homeland, he would be criminally liable. Such a worker would have then resorted to

finding employment in his rural homeland where job opportunities were scarce.172 These

167 Swanepoel (note 157 above; 97). 168 ibid 97. 169 Van Lingen v Est Van Lingen1946 (2) PH F54, Keen & 24 Others v Durban City Council 1950 (1) PH K26, United African Motor & Allied Workers Union v Fodens (SA) (Pty) Ltd (1983) 4 ILJ 212 (IC), Shezi (1) Nxumalo (2) Zuke (3) v Consolidated Frame Cotton Corporation Ltd (1984) 5 ILJ 10. 170 D J de Villiers SC ‘The Industrial Court’ (1991) 4(1) Consultus 54. 171 Act 25 of 1945; s 10. 172 Swanepoel (note 157 above; 980).

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devastating consequences were hoped to have been reversed when South Africa became a

republic, however, this was not the case.

In 1961, South Africa became a republic which saw the adoption of The Republic of South

Africa Constitution173 (hereafter referred to as the Constitution). The Constitution, together with

the Electoral Laws Consolidation Act174 endorsed segregation more ruthlessly by promoting

political and social rights for whites only. During this time Government sought to place a more

stringent hold on blacks which resulted in the enactment of the Black Authorities Act 58 of 1951,

the Black Labour Act 67 of 1964 and the Promotion of Black Self- Government Act 46 of 1959.

These discriminatory acts were strongly opposed by the international community who attempted

to admonish South Africa by passing resolutions against apartheid.

The United Nations General Assembly passed Resolution 1761 of 1962 which criticised South

Africa’s practices of apartheid. Therefore, member states of the United Nations were compelled

to end all military and economic relations with the country. Consequently, South Africa was

obliged to withdraw as a member from the International Labour Organisation in 1966. This

resulted in South Africa becoming isolated from international affairs which had drastic effects on

the country’s economy.175 This isolation, however, did not deter South Africa who further sought

to stifle any form of progression by black workers through the promulgation of yet more

legislation.

In 1973, the Bantu Labour Regulation Act176 was established. The Bantu Labour Regulation Act

sought to standardise working conditions for black employees. It implemented the process of

negotiation of settling conflicts and disputes between employees and their employers as well as

creating structures to initiate labour committees. However, the Bantu Labour Regulation Act

challenged the formation of black trade union movement by limiting black workers to

committees that were primarily employer-initiated and lacked any substantial power to bargain

effectively. Even though blacks were permitted to establish black trade unions, such unions were

not permitted to engage in negotiations regarding wages and employment conditions.177 It is

173 Act 32 of 1961. 174 Act 46 of 1946. 175 J S Saul Recolonisation and Resistance: Southern Africa in the 1990’s (1982) 16. 176 Act 70 of 1973, this amended the Black Labour Settlement of Disputes Act 48 of 1953. 177 S Johnson South Africa: No Turning Back (1988) 8.

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submitted that by prohibiting black workers in the decision-making process of wages and

conditions of employment, legislature effectively restrained black workers to the dictates of their

employers.

The surge in the manufacturing sector culminated in the migration of black workers to urban

areas resulting in the urban African population doubling in size. Black labour was severely

controlled by the state. The capacity of black workers to formulate unions was very limited.

Even though there were some unions in place, their success was inconsistent and undependable.

The Trade Council of South Africa was based in Durban, which sought to operate primarily

within the textile sector, but was highly ineffective. Black workers continued to be unrepresented

at the beginning of the 1970’s, while Indian workers obtained partial representation.178

Even though the atmosphere was dominated by racial oppression, this era was characterised by

numerous strikes, which rose from 6 000 strikers in the 1960’s to 94 000 in the early 1970’s.This

effectively led to the birth of the black consciousness movement among university students, and

the South Africa Students’ Organisation (SASO), as well as the National Union of South African

Students’ (NUSA). The working class as well as unions that had been immobilised in the 1950’s

and 1960’s contributed largely to the formation of new trade unions. These progressions laid the

foundation for the 1973 strike action.179

The beginning of the 1970’s saw the National Party government make radical changes to the

private sector of employment relations, as there was an urgent need for stability. There existed a

grave need for skilled workers, coupled with the torrent of sporadic strike action and internal

pressure, Government was forced to reform its policies.180 Government initially held that black

workers should only upon the approval of white unions, receive promotions, but due to the

critical state of the economy, cabinet had to alter its view.181 The labour constraints on black

workers began to steadily loosen. Due to a scarcity of skilled workers, Government was

compelled to improve training facilities for blacks. Job prospects for blacks thus became a

178 J Brown ‘The Durban strikes of 1973: Political identities and the management of protest’ 2010 Popular Politics 34. 179 ‘Ufil’ Umuntu, Ufil’ Usadikiza!- Trade Unions and Struggles for Democracy and Freedom in South Africa’, available at http://redblackwritings.files.wordpress.com/2014/07/Khanya-trade-unions-and-struggles-for-democracy-1973-2003.pdf , accessed on 3 July 2015. 180 J D Brewer Can South Africa Survive? (1989) 112. 181 Visser (note 90 above; 4).

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primary concern. Consequently, employment for whites was severely threatened and caused

great anxiety within white trade unions.182

2.4. THE WIEHAHN REFORMS

A defining event in the country’s history of labour activity was the mass strike action in Durban

during 1973 which served as a precursor to the renaissance of labour reformation.183 This strike

action was a culmination of decades of forced acceptance of labour policies. These strikes were

initiated as a result of factories following suit of the factories in neighbouring cities184 The wave

of strike action which engulfed the industrial sector, saw approximately 60 000 to 100 000 black

employees down tools over grievances regarding insufficient pay, and increasing unemployment

and poverty rates.185 It is quite evident that “tragedy tends to catalyze change.”186 The

institutionalisation of racial segregation accompanied by the torrent of strike action fertilised the

ground for an unprecedented harvest of trade union movement which black South Africans had

long anticipated.187

The Durban strikes of 1973 concluded in a new system of labour relations, which was a result of

the black trade union movement. The employment relationship between mine bosses and black

workers was previously regulated by a contract that supported apartheid policies. However, that

relationship saw significant transformation as negotiations between employers and unions took

place within an extensive framework based on anti-apartheid ideologies. Therefore, previous

labour contracts began to resemble standard forms of employment contracts.188 By the year 1976,

Government took cognisance of the profound force black workers had become.189 Government

was placed in a suffocating corner by having to deal with international pressure such as the threat

182 ibid 4. 183 Visser (note 144 above; 2). 184 E J Wood Forging Democracy from Below (2000) 132. 185 Visser (note 90 above; 4). 186 ‘Marikana as a tipping point? The political economy of labour tentions in South African Mining Industry and how to best resolve them’ Governance of Africa’s Resources Programme- Occasional Paper No. 164 (2013) 5. 187 S McDonald South Africa: In transition to What? (1988) 52. 188 ‘The Policy Gap- Review of the corporate social responsibility programs of the platinum mining industry in the platinum producing region of the North West Province’, available at http://www.bench-marks.org. downloads/ 070625-platinum-research-full.pdf , accessed on 6 July 2015. 189 Harris (note 106 above; 33).

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of sanctions being placed on the country by the United Nations, as well as the threat of

disinvestment by multinationals.190 As a result, Government was compelled to respond.

In 1977, the Wiehahn Commission was established being named after the president of the

Commission, Professor N.E Wiehahn,191 a labour law specialist and the Minister of Manpower’s

legal advisor.192 The Commission comprised of thirteen members consisting of white

representatives of employers and unions. The Commission’s only member, who was black, was a

businessman. The Commission adopted Dutch and German works councils as models for South

African labour relations.193 The Commission was charged with the responsibility of examining

various prospective reforms regarding collective labour law. Its report which was released

between the years 1979 and 1981 contained six parts.194

In 1979, the Commission’s first report was submitted. The Commission's essential

recommendations for labour reform were that all workers be entitled to the right to freedom of

association irrespective of their race or sex.195 Membership of trade unions should be decided

upon by the unions themselves. This would lift the ban on those unions which consisted of mixed

races and institute a free and voluntary association to trade unions.196 It was also suggested that

unions be able to freely decide on their own terms and conditions. Employers may not prohibit

an employee from union activities or membership, as this would constitute unfair labour

practice.197

The Commission also proposed the eradication of job reservation according to race as well as

including making apprenticeships accessible to all workers.198 All racial constraints were

repealed as well as the Bantu Labour Regulations Act of 1973.199 The Commission was also of

the view that there existed a deficiency of sufficiently qualified workers. Therefore, it

190 M Wiseman ‘Recent South African Labour Legislation: Assessing the New Rights of Black Workers’’ (1989) 9(1) Boston College International and Comparative Labour Review 173. 191 R E Bissol & C A Crocker South Africa into the 1980’s (1979) 63. 192 A Lichtenstein ‘From Durban to Wiehahn: Black workers, employers and the state in South Africa during the 1970’s’ Wits Institute for Social and Economic Research (WISER) (2013) 1. 193 Kittner, Korner-Dammann & Schunk (note 17 above; 37). 194 Ringrose (note 98 above; 10). 195 M Budeli ‘Employment Equity and Affirmative Action in South Africa: A Review of the Jurisprudence of the Courts since 1994’ Conference on ‘Twenty years of South African Constitutionalism’ New York Law School 1998 4. 196 Finnemore (note 72 above; 25). 197 V V Razis Swords or Plough Shares? South Africa and Political Change: An Introduction (2001) 68. 198 W G James The State of Apartheid (1987) 11. 199 Budeli (note 25 above; 472).

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recommended training of workers to be implemented through the enactment of legislation such

as the Manpower Training Act of 1981.200 It recommended that a National Manpower

Commission be instituted. This Commission would be endowed with the responsibility of

making proposals on labour reformation and would be affiliated to the Ministry of Manpower,

and lastly, there should be an independent Industrial Court to secure the consistent outcome of

cases.201 The institution of the Industrial Court would effectively replace the industrial tribunal

and be responsible for dispute resolution.202

At first, white union leaders were in favour of the elimination of the colour bar, as most white

workers were given promotions or pay hikes. However, this changed dramatically with the 1976

recession and worsened after 1981. This led to the loss of jobs due to the reorganisation of the

labour market. Consequently, white workers began to fiercely oppose the National Party.203

Government accepted over 90% of the recommendations made by the Commission. This

catalysed an entirely new dispensation from that which had been embedded in the country for

over a century. This was met with various reactions.

Even though white conservatives of white trade unions were not in favour of the

recommendations, internationally it was enthusiastically welcomed.204 As a result of these

recommendations, amendments were made to the Industrial Conciliation Act of 1956 in the years

1979 and 1980. This Act also underwent various amendments in subsequent years, which created

the Labour Relations Amendment Act 51 of 1981, and thereafter the 1983, 1984, 1988 and 1991

amendment acts.205

In 1980, parts 2, 3, 4 and 6 of the Wiehahn Report was published. These reports were not

fundamental in the development of trade union rights or the right of freedom of association. Nor

did they include any regulations regarding industrial action.206 In 1981, part 5 of the Wiehahn

Report was presented. These recommendations however, did consist of various proposals

regarding trade union practice and the right to freedom of association. It further proposed that 200 A Kraak ‘Shifting understandings of skills in South Africa’, available at http://www.hsrcpress.ac.za, accessed on 3 July 2015. 201 Finnemore (note 72 above; 25). 202 R Venter Labour Relations in South Africa (2006) 14. 203 S Marks & S Trapido in S Johnson South Africa: No Turning Back (1988) 20. 204 Van Vuuren (note 40 above; 189). 205 Budheli (note 16 above; 14). 206 Jones & Griffiths (note 22 above; 199).

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South Africa’s labour policies and practices should correlate to the standards set by international

instruments. The report also suggested that the prerequisites governing trade union registration

should be revisited and amended where necessary.207

The enforcement of the recommendation created significant progress for black workers. The year

1977 saw the formation of 22 black unions, which represented 88 000 members. Subsequently,

various bodies were created to render legal advice and provide training regarding collective

bargaining and organisational skills. To curb this progression by some, parallel unions were

initiated, which effectively meant that white unions would run alongside black unions in order to

dominate an industry.208 The role of trade unions was taken very seriously and they were

especially held accountable when they engaged in unlawful strike action. This was evident

through the outcome of a number of important cases.

In Murray & Roberts Buildings (Cape Town) Pty Ltd v SA Allied Workers’ Union,209 the

respondent initiated a strike involving the applicant’s employees. The strike took place and the

applicant gave the strikers notice that they were dismissed.210 The union denied that it

encouraged the illegal strikes and if the union organiser had initiated it, then the organiser had

done so without the union’s consent or knowledge.211 The court held that it is probable that the

respondent did nothing to prevent the strike or discourage the effect the strike had on the

employees or the employer’s business. The actions of the representatives of the respondent

constituted unfair labour practice.212 The court was not willing to tolerate deviations from

legislation from either employees or employers.

The Industrial Court was also unyielding towards employers who did not engage in all possible

procedures for dispute resolution or attempt negotiation with unions. In MAWU v Natal Die

Castings Co. (Pty) LTD,213 the employees embarked on a strike over a wage dispute which

resulted in the dismissal of strikers on the second day of the strike. The employer was only

willing to reinstate some employees who it viewed were not guilty of misconduct. The union 207 C H Schoeman, I Botha & P F Blaauw ‘Labour conflict and the persistence of Macro underemployment in South Africa’ (2010) 13(3) SAJEMS 276. 208 W Ananaba The Trade Union Movement in Africa: Promise and Performance (1979) 72. 209 Murray & Roberts Buildings (Cape Town) Pty Ltd v SA Allied Workers Union (1987) 8 ILJ 325 at 335. 210 Murray & Roberts Buildings supra note 209 at 327A-B. 211 Murray & Roberts Buildings supra note 209 at 331C-E. 212 Murray & Roberts Buildings supra note 209 at 335A-D. 213 MAWU v Natal Die Castings Co (Pty) LTD (1986) 7 ILJ 520 (IC) at 336G-I.

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insisted upon the reinstatement of all the strikers as well an inquiry into the allegations of

misconduct of the strikers. The court held that the dismissal of the strikers was unfair and

condemned the employer for not making an effort to reach an agreement with the union or to

engage in arbitration.214

Part 6 of the report was particularly important for employees within the mining industry. The

reforms removed the racial specifications of the Mines and Works Act of 1965, by substituting

the term ‘scheduled person’ with that of ‘competent person.’ Thus, black workers were permitted

to receive blasting tickets, which would equate them with white miners.215 Another pivotal

implication of the reforms was the formation of the Industrial Court. The term ‘court’ is rather

misleading as it was not a court per se, but was in reality a ‘quasi-judicial tribunal,’ which was in

other words a board that undertook seemingly judicial functions relating to labour law.216

Therefore, the Industrial Court was essentially similar to the role and functions of its

predecessor, the industrial tribunal, but with the additional power of extended jurisdiction.

Cognisance must be given to the fact that according to the LRA, legal strikes did not fall within

the ambit of unfair labour practices. The concept of unfair labour practice became pertinent when

dealing with dismissals, which were a result of employees striking.217 ‘Unfair labour practice’ is

a term which is wide enough to allow the court’s interpretation. If a matter could not be resolved

by the industrial council or conciliation board within its sector, such a case would be referred to

the Industrial Court to be decided upon.218 Even though the Industrial Court was not authorised

to make judgments regarding questions of law, the court could make decisions regarding an

unfairness of a labour practice, because an unfair labour practice does not require the element of

lawfulness. This element will be discussed in detail further on in the chapter.219

Even though the Wiehahn Commission sought to provide relief to the political, socio-economic,

national and international crisis which was a result of the black labour movement, these

214 Act 28 of 1956; s 7(11). 215 Visser (note 23 above;16). 216 Act 28 of 1956; s 7(11). 217 MyBurgh (note 31 above; 965). 218 NUMSA v Vetsak Co-Operative Ltd & Others (1996) 17 ILJ 455 (A) at para 460D-E, Council of Mining v Chamber of Mines of South Africa (1984) 6 ILJ 293 at para 56E-G. 219 Swanepoel (note 157 above; 66).

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recommendations could have been seen as a means of restraining black labour.220 The

Commission was adamant that black unions even though unregistered, enjoyed a far greater level

of freedom in comparison to white unions that entitled them to engage in political propaganda at

their will.221 Therefore, the recommendations presented by the Commission were a mechanism

of control and suppression rather than emancipation of black trade unions. Registered unions

would require adherence to a framework of “rule by proclamation.” This would be an intensified

extension of Government’s power over trade unions.222

The year 1983 saw the promulgation of The Republic of South African Constitution (hereinafter

referred to as the Constitution 1983).223 This Constitution was very much the same as its

predecessor in that it was responsible for functioning racial segregation amongst blacks and

whites. Blacks were once again refused political rights. In 1984, a tri-cameral parliament was

initiated, which included coloureds and Indians but omitted blacks. Trade union movements

during this period were highly influential in combating the apartheid policies.224 The 1980’s were

characterised by civil unrest directed against apartheid policies. Even though central Government

was a fortified force, these rebellions resulted in the demise of local Government systems.225

In the year 1988, the Labour Relations Act226 (hereafter referred to as the Labour Relations Act

of 1988) underwent further amendments. In terms of the Labour Relations Act of 1988, black

employees were given extended protection by the specification that any direct or indirect

intervention regarding an employee’s right to associate or not to associate would constitute

unfair labour practice.227 This effectively ensured that all employees were protected from

discrimination as a result of their trade union membership. However, its ambit was limited in that

it excluded employees within the public sector, employees in the farming sector and domestic

servants.

220 Price (note 52 above; 122). 221 A Callinicos South Africa Between Reform and Revolution (1988) 40. 222 A van Heerden Wiehahn Commission (1988) 56. 223 Act 110 of 1983. 224 W G James The State of Apartheid (1987) 38. 225 C Crabb Action through aesthetics art initiatives in South Africa during the Apartheid (unpublished LLM thesis, Georgia State University, 2013) 12. 226 Act 83 of 1988. 227 C Thompson ‘Beyond recognition: A new social contact’ (1988) 5(4) Indicator SA 70.

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In the year 1971, the Bantu Affairs Administration Act228 had been promulgated in light of the

Riekert Commission’s report which dealt with the control of the entry of black workers into

urban areas. It was implemented to ensure proficient administration over the metropolitan areas

and to promote an increase in the mobility of black labour. The administration boards set up

under the Bantu Affairs Administration Act were tasked to increase ‘necessary’ labour coming

into the area and control ‘unnecessary’ labour that should be removed from the area.229

Effectively, this meant that legislature was willing to allow black workers into urban areas as this

would increase productivity substantially. Consequently, those workers who were deemed to be

unbeneficial to production and the economy were taken out of the urban areas.

Employees within the public sector were governed by the Public Services Act.230 In terms of the

Public Services Act, employees were entitled to join associations. These associations however,

were restricted in their rights to deliberate on conditions of employment with the state. A further

amendment entitled the Industrial Court to issue urgent interdicts proscribing practices of unfair

labour. The Public Services Act endorsed the element of liability on union members, their

officials and even their office bearers for any injuries or damages to property as a result of

unprotected strike action. The amendments also created the Labour Appeal Court.231

After the height of apartheid in the 1980’s, the 1990’s ushered in a new democratic order. The

first democratic elections led to the repeal of apartheid policies and finally brought an end to the

institution of apartheid. An interim constitution was put in place, which enshrined equality of

race and sex entitling every citizen the right to fundamental freedoms.232 During the 1990’s there

were many reformations within the labour system. At this time the country experienced

numerous political and social challenges, which had dire consequences for the economy.

Consumer boycotts as well as an increase in industrial action largely contributed to South

228 ibid 70. 229 Thompson (note 227 above; 19). 230 Act 111 of 1984. 231 MyBurgh (note 31 above; 965). 232 R Kruger ‘Racism and law: Implementing the right to equality in selected South African Equality Courts’ (unpublished LLM thesis, Rhodes University, 2008) 53.

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Africa’s instability.233 In the year 1993 negotiations between parliamentary bodies and the ANC,

which was led by Nelson Mandela, were held to legislate the concept of equality.234

2.5 DISCUSSION OF THE ROLE OF THE INDUSTRIAL COURT IN DEVELOPING

PERTINENT CASE LAW THAT HAVE ADEQUATELY ILLUSTRATED THE

INCONSISTENCIES BETWEEN LEGISLATION AND THE LABOUR COURTS

As was previously discussed, the Industrial Court was given a wide range of discretionary

powers in terms of interpretation and application of principles.235 This was primarily due to the

fact that the LRA and its amendments did not provide express definitions to terms. The

successors of the Labour Relations Act of 1988, expressly included strike action from its

definition of unfair labour practice. This inclusion of strike action under unfair labour practice by

the Labour Relations Act of 1988 had devastating consequences for employees. Even if

employees followed the process as stipulated by the Labour Relations Act of 1988, their actions

could still be deemed unlawful according to the Industrial Court’s perception of fairness.236

Consequently, the Industrial Court was left to its own discretion in determining concepts of

fairness which were highly contradictory.237 Furthermore, it is submitted that the legislature did

not provide a distinction between disputes of rights and disputes of interest. It is submitted that

this lack of clarity resulted in inconsistency in the development of principles in labour law and

ultimately preserved the black employee’s title of underdog. Firstly, it resulted in an

overwhelming case load for the Industrial Court as it was now tasked with a dual responsibility

to act as arbitrator and judicial officer. This point is clearly portrayed in BTR Dunlop Ltd v

National Union of Metalworkers of South Africa (2).238 The case essentially dealt with the

dismissal of a shop steward following a disciplinary enquiry. Employees of the respondent

initiated a strike for the reinstatement of the shop steward. This strike was deemed to be illegal,

as it did not comply with legislation. The employees were thus interdicted from proceeding with 233 National Labour and Economic Institute ‘The Extent and Effects of Casualisation in Southern Africa: Analysis of Lesotho, Mozambique, South Africa, Swaziland, Zambia and Zimbabwe’ (2006) 53. 234 D Tilton & R Calland ‘In Pursuit of an Open Democracy: A South African Case Study’, available at http://www.opendemocracy.org.za , accessed on 5 July 2015. 235 J Grogan Collective Labour Law (2007) 87. 236 C Tanner ‘Making amends: The new look LRA’ (1991) 8(2) Indicator SA 89. 237 M Finnemore Introduction to Labour Relations in South Africa 6th ed (1998) 35. 238 BTR Dunlop Ltd v National Union of Metalworkers of South Africa (1989) 10 ILJ 701 (IC).

40

the strike. As a result of the interdict, the employees then made a submission for the

establishment of a conciliation board, alternatively that the matter be referred for adjudication.239

A conciliation board was set up which reached a deadlock regarding the matter. The matter was

then referred to the court for determination. However, before the matter could be decided on,

employees engaged in a second strike after taking a strike ballot. Consequently, an application

was made to the court to interdict the proposed strike pending the determination of the court.

This application was granted.240

The decision of the court was primarily based on two elements, namely: the lawfulness of the

strike and whether the strike was fair. This case illustrates how the Industrial Court could

determine that a strike was lawful on the one hand and also decide that it was unfair. The court in

this regard provides criteria for determining whether a strike is lawful. According to the

Industrial Court, lawfulness depends on the provisions detailed by the Labour Relations Act of

1988.241 In casu, the court held that the second strike was lawful as it followed the steps as

determined by s 65 of the Labour Relations Act of 1988. The first strike, however, was deemed

to be illegal as it did not follow the process as laid down by the Labour Relations Act of 1988.242

It follows from this decision that in determining lawfulness of strike action, the court is primarily

concerned with the procedure followed by employees. Hence, if the Labour Relations Act of

1988 did not include strikes under the banner of unfair labour practice, the only enquiry for strike

action would be whether such a strike was lawful in terms of its adherence to legislation’s

dispute resolution framework.

In determining the fairness of a strike, the court provided yet another criteria stating that “[a]ny

strike to enforce a demand which is illegal or contrary to public policy is manifestly illegitimate

and unfair”.243 It follows from this benchmark that the court is concerned with the effect of the

strike on society and whether such action would be initiated to enforce something which is

illegal. It is submitted that this criteria developed by the Industrial Court is correct and consistent

with the principles of fairness which is that all people should be treated the same and that no

person should be prejudiced by the illegal acts of others. Fairness denotes concepts of justice, 239 BTR Dunlop Ltd supra note 238 at 702H-G. 240 BTR Dunlop Ltd supra note 238 at 702H-G. 241 BTR Dunlop Ltd supra note 238 at 704H. 242 BTR Dunlop Ltd supra note 238 at 703G. 243 BTR Dunlop Ltd supra note 238 at 706B-C.

41

peace and equity. However, the Industrial Court provides a further standard by which to

determine fairness in which it states that the court must look at whether a strike is functional to

collective bargaining.244 It is submitted that this standard is incorrect.

The reason for this submission is that the court in this regard based such a standard in light of

National Union of Mineworkers v East Rand Gold & Uranium.245 The case dealt with a lawful

strike that ensued after employees reached a deadlock regarding wage negotiations. The

employer issued an ultimatum that employees who engaged in strike activity would not be liable

to be paid a back-dated wage. However, employees who did not participate in the strike would be

entitled to the back-pay. The employees argued that this amounted to an unfair labour practice.246

The court in East Rand Gold & Uranium supra agreed with this argument as it was held that

“[s]trike action was a legitimate corollary of collective bargaining”.247 Furthermore,

“discrimination against union members on the basis of their participation in strike action

amounted to the imposition of a penalty for striking”.248 The court in East Rand Gold &

Uranium supra arrived at its decision on the basis that the employer sought to unfairly

discriminate against his employees because they had participated in a strike. The unfair

discrimination was in the form of refusal to pay back pay to the striking workers. Therefore, the

employer’s actions amounted to an unfair labour practice.

It is imperative that the case of East Rand Gold & Uranium supra be distinguished from that of

BTR Dunlop supra. In the former case the situation centered on collective bargaining of wage

negotiations that ultimately led to a lawful strike. It is submitted that in this case there was a

dispute of interest as a dispute of interest arises when parties have failed to reach an agreement at

the bargaining table.249 Therefore, East Rand Gold & Uranium supra differs significantly from

that of BTR Dunlop supra as in the latter case the dispute was one of rights. The court itself

stated that the dispute in question of BTR Dunlop supra is a dispute of rights and further

244 BTR Dunlop Ltd supra note 238 at 706B-C. 245 National Union of Mineworkers v East Rand Gold & Uranium (1989) 10 ILJ 103 (IC). 246 National Union of Mineworkers v East Rand Gold & Uranium supra note 245 at 104A-C. 247 National Union of Mineworkers v East Rand Gold & Uranium supra note 245 at 104H-I. 248 National Union of Mineworkers v East Rand Gold & Uranium supra note 245 at 104H-I. 249 C Tustin & D Geldenhuys Labour Relations: The Psychology of Conflict and Negotiation 2nd ed (2000) 129.

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expounds that such a right is where the “legal entitlements are assessed by reference to a known

body of law (for instance a case concerning the lawfulness or fairness of a dismissal)”.250

It is therefore submitted that the standard of functionality that is used in East Rand Gold &

Uranium supra is correct as in the context of this case, strike action was deemed to advance

collective bargaining. Hence, the strike was acknowledged to be functional to collective

bargaining.251 It is further submitted that the court in BTR Dunlop supra is incorrect in applying

the same standard of functionality, because BTR Dunlop supra does not deal with an interest

dispute but rather a rights dispute as stated by the court. A rights dispute does not operate the

same as an interest dispute. It is evident that in terms of interest disputes, parties engage in

collective bargaining. However, disputes of rights have to be referred to the Industrial Court for

determination where a conciliation board has been unsuccessful in settling the dispute.252

Therefore, it follows that the same standard of functionality cannot be applied to BTR Dunlop

supra as this matter did not even concern collective bargaining. Even though the court did hold

that the strike was not in relation to the dismissal of the shop steward but rather that the strike

was a result of a failure to refer the matter for adjudication, the standard for functionality yet

again does not become relevant to the decided case. The concept of adjudication differs

substantially to collective bargaining as bargaining is concerned with negotiating on the interests

of employees regarding terms and conditions of their employment and other matters that are

deemed to be of mutual interest to the parties.253 Hence, it is respectfully submitted that the

court’s findings are unsound. Thus the case of BTR Dunlop supra blatantly conveys the pitfalls

of the inclusion of industrial action under the banner of unfair labour practice. It also illustrates

that legislature’s lack of clarity on the separation of rights and interest disputes allowed the court

to develop a benchmark which as discussed did not adequately entrench concepts of reason and

justice.

Additionally, by allowing disputes of right and disputes of interest to be decided on by a court of

law, legislation and the court structures negated the concept of collective bargaining principles

and adjudication. It has been asserted that the court was viewed as a mechanism to reduce strike

250 BTR Dunlop Ltd supra note 238 at 711G-H. 251 BTR Dunlop Ltd supra note 238 at 705F. 252 Food & Allied Workers Union v Clover Dairies (1986) 7 ILJ 697 (IC). 253BTR Dunlop Ltd supra note 238 at 706B-D.

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action by employees as any disputes which arose would be adjudicated through judicial

inquiry.254 It is respectfully submitted that this was not correct; rather, it created even more

problems for the worker who had to submit to the dictates of the judiciary which often gave one

party an advantageous position over the other.

The Industrial Court achieved this by removing disputes of interest, which should have been

resolved through negotiation and compromise at industrial level between parties, and left them at

the discretion of a judiciary whose aim was to make a final judgment that would create a win-

lose situation for the parties.255 Furthermore, the system took matters which should have been

decided through arbitration that is a process of investigation and consultation with both parties,

and placed it in the hands of an overloaded court system that did not have required skilled and

expertly trained staff. Moreover, the court’s procedures were too technical, thus making it

difficult for lay people to access.256

In BTR Dunlop supra, the court dealt with another issue of unfairness. The court asserts that

parties possess a right of paramount significance in that they can have their matter adjudicated by

the Special Labour Appeal Court, which is the highest court where a matter may be decided.

Therefore, the court reasoned that the strike was a “coercion to compel a party to abandon his

right to have the matter adjudicated by a court of law”. Consequently, it was unfair on that basis.

It is submitted that the rationale of the court itself is unfair. If the strike was deemed unfair as it

coerced the employer to arbitration, then the opposite should also hold true in that it would be

unfair for an employee to be forced to have the matter decided by a court of law when the law

provides that a party may waive his right to have the matter heard in court and may decide on an

alternate forum such as adjudication.257 It is submitted that this reasoning is unjust and does not

take the employees’ rights into consideration. Consequently, the employee retained his position

as the underdog. This case provides an ideal illustration of how the Industrial Court applied

contradictory and unreasonable principles of fairness. However, much fault in this area rests on

legislature and its inability to properly define terms and to provide simple and clear mechanisms

254 Prof. N E Wiehahn The Complete Wiehahn Report (1982) 462. 255‘The Industrial Court in the cross volley’ (1984) 2(3) Indicator SA 1. 256 A Steenkamp & C Bosch ‘Labour dispute resolution under the 1995 LRA: Problems, pitfalls and potential’ (2012) Acta Juridica: Reinventing Labour Law: reflecting on the first 15 years of the Labour Relations Act and future challenges 121. 257 BTR Dunlop Ltd supra note 238 at 708B-709A.

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for dispute resolution depending on the classification of the dispute. By not distinguishing

between disputes of rights and interest, parties could unilaterally decide what type of right that

particular dispute fell under.

Consequently, the door to abuse was opened. In such instances, parties would intentionally

pursue a matter under the term ‘dispute of right’ to ensure that strike action would not be a

recourse available to employees.258 The Industrial Court’s reaction in these circumstances was

against the employer. In regard to disputes of interest there was persuasion to the argument,

reinforced through the court’s judgment, that in terms of such disputes employers were

compelled to engage in bargaining in order to resolve the dispute to ensure that it would not

escalate to strike action.259

After a succession of cases, this was affirmed by the Supreme Court in Natal Die Casting v

President, Industrial Court & others.260 In Natal Die Casting supra the employer and employees

engaged in negotiations regarding wages, the most significant aspect being that of a bonus.

Consequently, there was a letter written to the employer informing it that a dispute will be

declared following failed negotiations of which the third respondent alleged that it was due to the

employer’s failure to negotiate in good faith, thus rendering it an unfair labour practice.261 The

dispute was then referred to the Industrial Council within the particular sector to resolve the

dispute.

The employees sought resolution and the suspension of any dispute proceedings on the basis that

the employer negotiated in good faith. However, after further unsuccessful negotiations the

employer made an offer which was refused by the employees. Consequently, the dispute was

invoked yet again.262 A strike ballot was then taken which favoured a strike and as a result the

employees refused working. This led to the dismissal of the employees. It was argued that the

258 Metal & Electrical Workers Union of SA v National Panasonic Co (1999) 12 ILJ 533 (C). 259 Black Allied Workers Union & Others v Umgeni Iron Works (1990) 11 ILJ 589 (IC) at 591A-C, see also Bleazard & Others v Argus Printing & Publishing Co Ltd & Others (1983) 4 ILJ 60 (IC), United African Motor and Allied Workers Union v Fodens SA (Pty) Ltd (1983) 4 ILJ 212 (IC), Black Allied Workers Union (SA) v PEK Manufacturing (Pty) Ltd (1990) 11 ILJ 1095 (IC), Sentraal-Wes (Kooperatief) Bpk v Food & Allied Workers Union & Others (1990) 11 ILJ 977 (LAC), East Rand Gold & Uranium Co Ltd v National Union of Mineworkers (1989) 10 ILJ 683 (LAC). 260 Natal Die Casting v President, Industrial Court & Others (1987) 8 ILJ 245 (D). 261 Natal Die Casting v President, Industrial Court & Others supra note 260 at 247B-E. 262 Natal Die Casting v President, supra note 260 at 247E-I.

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Industrial Court did not have jurisdiction to hear the matter. The court held that it did in fact have

jurisdiction over the matter. The court itself highlighted the lack of clarity within the Labour

Relations Act in that it was silent as to the exact powers of the Industrial Court regarding the

kind of ‘determination’ it could make.263

Therefore, the court agreed with the case of Trident Steel (Pty) Ltd v John NO & Others,264

where the court stated that the Industrial Court may not only make a declaratory order, but it may

also make any order that would settle the dispute between the parties.265 It is submitted that this

lack of clarity by legislature ultimately provided the Industrial Court with unlimited jurisdiction.

It could thus make any order according to its discretion that would bring the dispute to an end.

The court, once satisfied of its jurisdiction, turned to the merits of the case. The fact that a strike

in Natal Die Casting supra was deemed unlawful because it did not follow the conciliatory

procedure before engaging in strike action, does not mean that the issue which brought about the

strike cannot be deemed an unfair labour practice. In reaching its decision, the court gave

consideration to s 1 of the Labour Relations Act of 1988 and its definition of unfair labour

practice. The court decided that the failure of the employer to engage in negotiations in good

faith on the issues which gave rise to the strike as well as the dismissal of the employees based

on the strike over these issues, amounted to an unfair labour practice. The reinstatements of the

dismissed employees were thus ordered. It is submitted that there are two very significant issues

which are raised in this case.

The first issue which the court highlights is that of legislature’s poor drafting of the Labour

Relations Act of 1988 in light of its silence on the powers of the Industrial Court. This is

pertinent in that such silence consequently led the court to assume unlimited jurisdiction in terms

of any order it deemed fit to end a dispute. This was a key aspect of one of the pitfalls in the

Labour Relations Act as the Industrial Court through its interpretation of section 46(9)(a), could

construe a ‘determination’ to mean anything it saw fit. This effectively meant that the Industrial

Court not only interpreted section 49, but also developed that respective section to enable it to

perform unlimited functions. 263 Natal Die Casting v President, supra note 260 at 253F-G. 264 Trident Steel (Pty) Ltd v John NO & Others (1987) 8 ILJ 27 (W), See also Marievale Consolidated Mines Ltd v President of the Industrial Court & Others (1986) 7 ILJ 152 (T), Towels, Edgar Jacobs Ltd v The President of the Industrial Court & Others 1986 (4) SA 660 (C). 265 Natal Die Casting v President, Industrial Court & Others supra note 260 at 254B-E.

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The second issue which arises is that the term unfair labour practice can extend to an employer’s

refusal to settle a dispute, which would lead to industrial action. Therefore, in terms of this

decision, an employer would be compelled to accept the demands of employees so as to prevent

them from engaging in industrial action. Nowhere in the decided case does the court make

reference to the employees' wage and bonus demands being reasonable so as to convey that the

employer was unreasonable in not consenting to their demands. This begs the question as to

which circumstances would give rise to where an employer would not be compelled to accept the

demands of the employees.

Furthermore, in circumstances where employees demand salaries or bonuses which exceed the

economic capability of the employer, would such an employer be deemed to have negotiated in

bad faith if he cannot consent to the employees’ demands? It may well be that in this given case

the employer had sufficient means of increasing wages and paying bonuses, however, it is

submitted that the court does not provide clarity as to when the demands of employees are

unreasonable and whether employers in such cases would also have to submit to the demands of

their employees. It is submitted that the court’s assumed extended jurisdiction and its

interpretation of unfair labour practices was a recipe for inconsistency. The extended jurisdiction

of the court also allowed it to interpret and develop legal concepts.

The term ‘unfair labour practice’ was broadly defined which extended the net over a wide variety

of acts within the labour relations framework.266 It was held in Consolidated Frame Cotton

Corporation v President, Industrial Court,267 that “[t]he concept of an “unfair labour practice”

covers a wider field than the matters referred to in paragraph (a) and (b) of s 43 (l)…”. As a

result of legislature’s lack of clarity on the term ‘unfair labour practice’, the Industrial Court had

to extend its powers and develop the law rather than simply interpret it. This effectively meant

that the Industrial Court had to define the term ‘unfair labour practice’.268 Therefore, the

overlapping of the criteria for unfair labour practice led the Industrial Court to become burdened

266 Bleazard & Others v Argus Printing & Publishing Co Ltd (1983) 4 ILJ 60 (IC), SA Diamond Workers’ Union v The Master Diamond Cutters’ Association (1982) 3 ILJ 87 (IC), Grafton Furniture Mfg (Pty) Ltd v Industrial Council for the Furniture Mfg Industry (1982) 3 ILJ 294. 267 Consolidated Frame Cotton Corporation v President, Industrial Court 1985 (3) SA 150 (N). 268 Mynwerkersunie v O’Okiep Copper Co Ltd supra at 257, Raad van Mynvakbonde v Minister van Mannekragen n ander 1983 (4) SA 29 (T), United African Motor & Allied Workers Union v Fodens (SA) (Pty) Ltd supra at 254, Msomi v The Claims Officer & Another (1980) 1 ILJ 292 (N), Moses Nkadimeng & Others v Raleigh Cycles (SA) Ltd (1981) 2 ILJ 34 (IC), NUTW v Stag Packings (Pty) Ltd (1982) 3 ILJ 285 (IC).

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by the volume of cases continuously being presented to it.269 One such case was that of NUMSA

v Vetsak Co-Operative Ltd & Others.270 The Appellate Division was called upon to decide on the

dismissal of employees who engaged in a lawful and legitimate strike. The strike was regarded as

a legitimate purpose, as it sought to obtain a wage agreement through the process of collective

bargaining. The strike was also regarded as being lawful, because it complied with the statutory

requirements of the LRA.271

However, upon receiving an ultimatum to return to work, the employees refused to do so thus

resulting in the dismissal of the striking workers. The court was therefore presented with the

issue as to whether the employer’s dismissal of the employees amounted to unfair labour

practice. In its dissenting judgment, the court made significant points regarding the freedom to

strike. The court stated that workers may not be dismissed merely for engaging in strike action. If

this were to be the case, then the purpose of strike action would be nullified and the whole

process of collective bargaining would be undermined. However, regardless of whether a strike

is within its statutory requirements or not, an employer may be validated for dismissing

employees on the basis of breach of contract due to prolonged absenteeism.272

In deciding whether the employer’s actions amounted to unfair labour practice, the court made

reference to s 1 of the Labour Relations Act of 1988. It reasoned that the court has to have due

regard to both the employer and employee when making a decision on fairness.273 Cognisance

must be given to the fact that merely because a strike is lawful in terms of the Labour Relations

Act of 1988, it does not automatically render the dismissal of striking workers to be unfair.

Similarly, if a strike is regarded as unlawful, then that warrants the dismissal of striking

employees.274

The court reasoned that unfair labour practice cases could not be decided according to a rubber

stamp basis, but rather, each case had to be assessed on its own merits taking in into account

whether a strike was lawful, whether the conduct of both employer and employee was lawful,

269 Stewart Wrightson v Thorpe 1977 (2) SA 943 (A), Mynwerkersunie v O’Okiep Copper Co Ltd (1983) 4 ILJ 140 (IC). 270 NUMSA v Vetsak Co-Operative Ltd & Others (1996) 17 ILJ 455 (A). 271 NUMSA v Vetsak Co-Operative Ltd supra note 270 at 460A-B. 272 NUMSA v Vetsak Co-Operative Ltd supra note 270 at 460D. 273 NUMSA v Vetsak Co-Operative Ltd supra note 270 at 461A-B. 274 NUMSA v Vetsak Co-Operative Ltd supra note 270 at 460B-C.

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whether such parties acted in good faith and the nature of the strike in regard to its aims and

purpose.275 The court acknowledged that the test adopted to determine unfair labour practice was

too widely construed for any party to foresee the outcome of the case.276 It is submitted that the

decisions of the courts presented much inconsistency that ultimately left parties with a lack of

direction regarding industrial disputes. This in turn meant that parties were constantly unsure of

the consequences of their conduct and whether or not their actions would have had devastating

consequences. Indeed it is submitted that each case has to be decided on its own facts, however,

the Industrial Court did not provide a sufficient guideline or criteria that allowed different facts

to be assessed according to the same standards. It is for this reason that there were many

contradictions in its decisions.

The contradictory application of the law was applied in another case that was brought before the

Supreme Court of Appeal (SCA), namely National Union of Mineworkers (NUM) v Black

Mountain Mineral Development Company (Pty) Ltd.277 A strike ensued as a result of an impasse

in negotiations regarding wages, which consequently led to the dismissal of such workers. The

respondent gave the striking workers a choice to return to work on their own terms. Those who

accepted this were re-instated to their positions. However, those who did not were dismissed.

This resulted in the dismissed employees having to return to their homelands. Subsequently, the

union instituted proceedings on behalf of the dismissed employees on the basis that it constituted

unfair labour practice and claimed the re-instatement of such employees.278

The matter was initially dismissed by the Industrial Court. The SCA in making its decision stated

that:

“striking as such does not amount to misconduct. There is accordingly an important distinction

between dismissal for misconduct and dismissal in consequence of strike action, and it follows

that considerations relevant to the former are not necessarily relevant to the latter”.279

This rationale that the court adopted is an excellent portrayal of the inconsistency of labour

relations under the Labour Relations Act of 1988. In light of the above extract from the court’s

275 NUMSA v Vetsak Co-Operative Ltd supra note 270 at 460F-461A. 276 NUMSA v Vetsak Co-Operative Ltd supra note 270 at 460D-E. 277 NUM v Black Mountain Mineral Development Company (Pty) Ltd (1994) 15 ILJ 1005 (LAC). 278 NUM v Black Mountain Mineral Development Company (Pty) Ltd supra note 277 at 61E-F. 279 NUM v Black Mountain supra note 277 at 61E-F.

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judgment, it would follow that only misconduct arising out of the strike action would be relevant

to the merits of a case. Misconduct that did not form part of or was a result of strike action,

would therefore not have a bearing on the strike action. Even though the court stipulates that this

is a standard can be used to determine an employee’s conduct, the standard is not applied to all

cases. The inconsistency of the court is evident in its lack of application of the same standard to

all cases.

In the National Union of Metal Workers of South Africa (NUMSA) v G M Vincent Metal Sections

(Pty) Ltd,280 dealt with by the SCA, the matter was first heard by the Industrial Court, then taken

on appeal to the Labour Appeal Court (LAC) and finally reached the SCA. Employees of the

respondent and members of NUMSA engaged in a number of unlawful activities in the first half

of 1992, which resulted in written warnings being given to all NUMSA members and the final

step being that of dismissal. On the 3rd of August 1992, employees engaged in a strike. The

respondent then effected the dismissal of the striking employees from the 24 of August 1992.

NUMSA then decided to call off the strike based on a judgment handed down by the SCA in

another case that was not in their favour. Of the striking workers who returned to work, 2000

were not accepted back into employment.281

In reaching its decision, the court took into account a number of factors. The first factor was that

of the financial position of the respondent’s business. The court made reference to the substantial

losses that the business suffered due to a downward spiral of the steel sector. The court also

raised the fact that the respondent tried to communicate with NUMSA on various occasions, but

without success. The respondent even mentioned to the union that the strike was having severe

ramifications on the business and asked for an exemption from the strike. However, the union

only responded on one occasion concerning the retrenchment of the workers. The third factor

that the court raised was that of the violence, which took place on the 21st of August. The court

also made reference that the requirements of the Labour Relations Act of 1988 stipulated that a

strike ballot had to be taken and had thus rendered the strike unlawful282

280 NUMSA v G M Vincent Metal Sections (Pty) Ltd (1999) 20 ILJ 2003 (SCA), BAWU & Others v Edward Hotel (1989) 10 ILJ 357 (IC). 281 NUMSA v G M Vincent Metal Sections (Pty) Ltd supra note 280 at 4-6. 282 NUMSA v G M Vincent Metal Sections (Pty) Ltd supra note 280 at 7-10.

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The court ultimately had to decide whether the striking employees’ failure to heed to the

ultimatum given by the employer amounted to an unfair labour practice. The court reasoned that

the concept of fairness had to be applied according to the precedent that had developed through

various cases presented before the court.283 However, pertinently to this discussion is that the

court held that the employer was justified in taking into account the disciplinary record of the

employees and that in refusing to re-employ or re-instate the employees it had dismissed, it had

not committed unfair labour practice. This disciplinary record included employees’ behavior that

was not in the course of the strike.284 It is respectfully submitted that the standard for

determining unfair labour practice differed greatly. By not applying the same standard to all

cases, the court was actually being unfair and contradictory to the purpose and intent it sought to

uphold.

If individuals could not have known how the court was going to interpret cases, they could not

have known whether their actions were permissible or not. This was prejudicial considering that

employees were rooted in a past of insecurity. It is submitted that the Industrial Court created

much doubt and uncertainty on significant issues of the law. This is turn resulted in a very shaky

justice structure, which left those dependent upon it with very little hope. Much of this could

have been avoided if legislature had provided adequate tools for the courts to build with.

2.6 CONCLUSION

Chapter two presented and discussed the chronological evolution of industrial relations and in

particular the right to strike action from a legislative perspective in South Africa between the

years 1640 and 1990. The chapter presented this discussion in five sections namely the time

periods 1640 - 1910; 1910 to 1946 and 1946 to 1990, as well as special mention of the important

role of the Wiehahn Commission of Inquiry and finally the evolution of relevant case law. It is

only in fairly recent times that the right to freedom of association and right to strike of all

workers in South Africa have been endorsed and finally embedded in the interim constitution and

final Constitution of 1996. Labour union development and existence was along racial lines and

recognition of unionisation of white labour was a specific political goal to entrench policies of

apartheid and continue the subjugation of black workers to their white counterparts. South Africa

283 NUMSA v G M Vincent Metal Sections (Pty) Ltd supra note 280 at 18. 284 NUMSA v G M Vincent Metal Sections (Pty) Ltd supra note 280 at 35.

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has indeed evolved from an oppressive state to a country that now enjoys constitutionalised

labour rights. However, the journey has been long and bitter. There has been much bloodshed

over centuries during violent strike action that has paid for the changes we see today. However, it

is worth noting that these strikes have had a cathartic effect on the country, as the apartheid

Government in every instance was adamant about preventing such a horrific repetition through

the enactment of legislation.

It is for this reason that one can acknowledge that there is an inextricable link between strike

action and the progress of legislation. This emphasises the pertinence of strike action and the

necessity of preserving and protecting its role and function within society today.

The next chapter, Chapter three will cover the international laws regulating strike action.

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CHAPTER THREE

INTERNATIONAL LAWS REGULATING STRIKE ACTION

3.1. INTRODUCTION

The protection of workers’ rights has recently been the focus of many scholars and state officials.

This is largely due to the fact that workers’ rights have been positioned under the banner of

human rights and thus necessitates greater protection.1 The right to strike has been acknowledged

as an essential right not only in South African law, but also within international law.2 This is

primarily due to the paramount role industrial action has within society at large. Where any

labour market exists, strikes are to be regarded as an unavoidable and indispensable corollary3 to

the employment relationship, particularly to the rights pertaining to trade unions.4 International

laws form the mould which shapes legislation within individual countries.5 The Constitution

compels South African courts, tribunals and forums to give effect to international laws.6 In

addition, the international treaties signed and endorsed by various countries impresses an

obligation on such states to submit to the policies enshrined by the binding treaty.7 Various

countries such as Italy, Spain, Portugal, France and South Africa have constitutionalised the right

to strike.8 The constitutionalisation of strike action as well as the promulgation of supporting

legislature, which gives effect to this right, emphasises the mandate that these international

frameworks seek to achieve.9

1 O V C Okene ‘Human rights at work: Measuring the democratic rights of Nigerian workers by international standards’ (2015) 35 Journal of Law, Policy and Globalization 125. 2 M A Chicktay ‘Defining the right to strike: A comparative analysis of international labour organizational standards and South African law’ (2012) 33(2) Obiter 260. 3 O V C Okene ‘Derogations and restrictions on the right to strike under international law: the case of Nigeria’ (2009) 13(4) The International Journal of Human Rights 553. 4 S Leader Freedom of Association: A Study in Labor Law and Political Theory (1992) 182. 5 E Manamela & M Budeli‘Employees’ right to strike and violence in South Africa’ (2013) 46(3) CILSA 3. 6 The Constitution of the Republic of South Africa, 1996; s 39. 7 R Kruger Implementing the Right to Equality in Selected South African Equality Courts (unpublished Phd, Rhodes University, 2008) 55. 8 Italy endorsed the right to strike in 1948, Spain in the year 1978, Portugal in the year 1976, France in the year 1946 and South Africa in the year 1994. 9 R Bernikow ‘Ten years of the CCMA – An assessment for labour’ (2007) 11 LDD 15.

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This chapter seeks to highlight the significance of the right to strike within an international

framework. It is imperative to do so, firstly, because strike action is synonymous with the right to

freedom of association. Even though strike action has not been unequivocally enunciated as a

right in a number of States’ legal frameworks as well as international policy, the right to freedom

of association is universally protected and therefore confers protection on industrial action.

Secondly, industrial action has been protected by a number of universal bodies. This alone is

indicative of the significance of this right, as the conventions and resolutions which have been

ratified by these international instruments have subsequently been adopted by states

internationally. Thus, States are compelled to protect the right to strike.

This chapter will firstly illustrate the necessity and limitations that are required to enforce the

right to strike and ensure that it is not subject to the abuse of employees. The discussion will then

go on to highlight the international bodies which protect strike action. The discussion will focus

on three instruments namely, the International Labour Organization (ILO), the European Charter

on Human Rights (ECHR) and the African Charter on the Human Rights of the Peoples (African

Charter) as a discussion of all international instruments is beyond the scope of this work.

3.2 THE NECESSITY FOR THE PROTECTION OF THE RIGHT TO STRIKE

Strike action has conventionally been construed as an integral element to collective bargaining10

necessary for the enhancement of employment conditions, wages and the hours of work.11

Strikes are regarded as a collective ‘movement’12 which derives itself from the disputes between

workers and employers relating to the employment, requiring the temporary suspension of work

by the employee in order to compel a change in employment.13

10 P J Cavalluzzo ‘Freedom of Association and the right to strike in Canada after Fraser’ Call Conference Quebec City (2012) 13. 11 A R Mason ‘The Right to Strike’ (1928) 77(1) University of Pennsylvania Law Review and American Law Register 59. 12 Shammagar Jute Factory v Their Workmen (1950) Law Institute Journal 235 (IT). 13 M I Shadur ‘Majority Rule and the Right to Strike’ 1 January 1949, available at http://www.jstor.org/stable/1597953? seq=1&cid=pdf= refe- rence#reference-tab-contents, accessed on 5 July 2015.

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However, this right has far exceeded its ambit, as it accomplishes much more than its

contribution towards the work interests of employees.14 The purpose of industrial action may

lead to improved dialogue between workers and management and thus contribute to

revolutionary policies which could mobilise workers against socio-economic difficulties.15 It is

for this reason that industrial action has been classified as a socio-economic right within

international law.16

Socio-economic rights are attributed a lesser degree of protection, due to the criticism that they

are regarded as dictatorial and cause severe economic losses to countries. This is primarily due to

the purpose of a strike being to cause economic losses to the employer in an attempt to coerce the

employer to yield to the negotiated demands of the employees.17 The economic losses incurred

by employers as a result of loss of production and profit18 ultimately impact negatively on

society19 and the economy as a result of a low annual growth rate which retards the country’s

GDP growth.20 Therefore, socio-economic rights are regarded as second generation rights. Civil

and political rights on the contrary, are afforded a significantly greater level of protection within

international law,21 mainly because of the fundamental freedoms civil and political rights have

always sought to advance such as the right to free association,22 the right to free speech and the

right not to be subjected to forced labour among other rights.23

Thus, the right to strike necessitates greater protection within international human rights because

if individuals are not able to engage in strike action then their basic human rights could be

14 B Nkabinde ‘The Right to Strike, an Essential Component of Workplace Democracy: Its Scope and Global Economy’ (2009) 24(1) Maryland Journal of International Law. 276; Case No. 772 (Spain) 139th Report of the CFEA; Case No. 1068 (Greece) 214th Report of the CFEA; Case No. 1018 (Morocco) 214th Report of the CFEA; Case No. 1131 (Upper Volta) 22nd Report of the CFEA. 15 M Servais ‘The ILO Law and the freedom to Strike’ available at https://www.law.utoronto.ca/.../Strike

Symposium09_ Servais.pdf, accessed on 15 September 2015; Case No. 1381 (Ecuador) 248th Report of the CFEA; Case No. 1081 (Peru) 214th Report of the CFEA. 16 T Novitz International and European Protection of the Right to Strike (2003) 102. 17 NUMSA v Boart MSA [1996] 1 BLLR 13 (LAC). 18 Z Qinghong ‘Regulate the right to economic strike so as to create harmonious labour relations’ 7 March 2011, available at http://www.jttp.cn/a/report/opinion/2011/0307/942.html, accessed on 15 September 2015. 19 International Labour Office Report of the Committee of Experts on the Application of Conventions and Recommendations (Report iii, Part 4 A) (1992) 226. 20 L Krugel ‘Strike season and its impact on the economy’ 6 November 2013, available at http://www.sablog.kp mg- .co.za/2013/11/strike-season-impact-economy/, accessed on 15 September 2015. 21 ibid 102. 22 Collymore v Attorney-General, [1970] AC 538. 23 M A Chicktay ‘Placing the right to strike within a human rights framework’ (2006) 27(2) Obiter 348.

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violated.24 The right to strike allows employees to improve working conditions and wages25 that

ultimately lead to the improvement of an employee’s livelihood as well as their dignity within

society.26 There is an undeniable correlation between industrial action and the right to life

because if employees are able to obtain a living wage that allows them to afford food, clothes,

housing, medical treatment etc. then there is a greater possibility that such employees would

have a healthier life.27 If employees are prevented from engaging in strike action, they would

also be prevented from withholding their labour at their own will. Consequently, workers would

be forced to carry on their work against their will and be compelled to accept any condition of

employment dictated to by the employer thus, their right to be free from slavery.28 Furthermore,

strikes are a form of voicing employees’ dissatisfaction with the conditions of employment

enforced by management, thus, if employees were prevented from striking then their right to

freedom of speech would also be violated.29

Parties to the ILO have for over 60 years, acknowledged that strike action is indeed a right and

that there is an inextricable relationship between industrial action and the right to freedom of

association.30 Furthermore, human rights cannot subsist without the implementation of social

justice.31 Freedom of association is viewed as a conduit to realise subsequent rights. The United

Nations Commission on Human Rights which is tasked with the promotion and protection of the

right or freedom to strike, has enunciated that freedom of association cannot solely safeguard the

best interests of employees because industrial action is the best effective means of worker

protection.32 It is significant to emphasise that in approximately 3000 international cases, the

ILO33 has, unopposed, validated and applied the right to freely associate and the right to strike.34

24 Nkabinde (note 14 above; 339). 25 Tramp Shipping Corporation v Greenwich Marine Incorp [1975] 2 ALL ER 989 (C.A). 26 Reference Re Public Service Employee Relations Act [1987] 1 SCR 313. 27 Francis Corallie Mullin v Administrator of Delhi AIR 1981 SC 746. 28 J R Bellace ‘The ILO Law and the freedom to strike’ (2014) 153(1) International Labour Review 30. 29 NAACP v Clairborne Hardware C 458 US 886 (1982), State v Traffic Telephone Workers Federation of New Jersey 66 A.2D 616, 1 N.J 335, 9 A.L.R. 2D 854 (1949). 30 ‘The right to strike: A comparative perspective. A study of national law in six EU states’ available at http://www.ier.org.uk, accessed on 5 July 2015. 31 M Budheli ‘Workers’ right to freedom of association and trade unionism in South Africa: An historical perspective’ (2009) 15(2) Fundamina: A Journal of Legal History 1. 32 T Cohen & L Matee ‘Public servant’s right to strike in Lesotho, Botswana and South Africa- A comparative study’ (2014) 17(4) PER 1632-1633. 33 G P Politakis ‘Protecting Labour Rights as Human Rights: Present and future of International Supervision’ Proceedings of the International Colloquium on the 80th Anniversary of the ILO Committee of Experts on the Application of Conventions and Recommendations, Geneva (2006) 2.

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Therefore, if protection is given to the freedom of association, which is a first generation right

and not to the right to strike, this would be an illusory notion of democracy.35 The right to strike

has been acknowledged as the cornerstone of the right to freedom of association, therefore they

are both regarded as integral rights to the implementation of democratic values.36 The majority

decision of McLachlin CJ, LeBel, Binnie, Fish, Bastarache, and Abella JJ in Health Services and

Support-Facilities Subsector Bargaining Association v British Columbia37 held that an

employee’s right to collective bargaining and freedom of association endorses democratic values

such as the right to dignity, the right to freedom of choice and the right to equality.38

Secondly, the right to strike necessitates protection as it is fundamental to the practice of

collective bargaining and in obtaining effectual relations between capital and labour.39 The

success of collective bargaining is thus dependent upon industrial action,40 as without strike

action employees lack negotiating power.41 The ILO does not contain a clear endorsement of

strike action within the Freedom of Association and Protection of the Right to Organize

Convention42 (hereinafter referred to as the Freedom of Association Convention) and the Right

to Organize and Collective Bargaining Convention43 (hereinafter referred to as the Right to

Organize Convention).44 However, the Committee on Freedom of Association (CFA) and the

Committee of Experts on the Application of Conventions and Recommendations have affirmed

that industrial action is an essential prerequisite to the Freedom of Association Convention and

as such necessitates a responsibility to protect the right to strike.45 The reason for the affirmation

by the CFA is that the right to strike has been acknowledged as an integral part of the furtherance

34 Chicktay (note 23 above; 346). 35 M Budheli ‘Freedom of association for public sector employees’ (2003) 44(2) Codicillus 49. 36 L J Matee ‘Limitation on Freedom of Association: The Case of Public Officers in Lesotho’ (unpublished LLM thesis, University of Kwazulu-Natal, 2013) 1. 37 Health Services and Support-Facilities Subsector Bargaining Ass’n v British Columbia, [2007] SCC 27, [2007] 2 SCR 391. 38 Health Services and Support-Facilities supra note 58 at 393. 39 HandWoven Harris Tweed Co. Ltd v Veitch (1942) AC 435. 40 Manamela & Budheli (note 5 above; 309). 41 Davis v Henry 555 So. 2d 457- (La.1990). 42 The Freedom of Association and Protection of the Right to Organize Convention No. 87 of 1948. 43 The Right to Organize and Collective Bargaining Convention No. 98 of 1949. 44 R Dalton & R Groom ‘The right to strike in Australia: International treaty obligations and the external affairs power’ (2000) 1 Melbourne Journal of International Law 162. 45 I Vonk-Asscher ‘Equality and Prohibition of Discrimination in Employment’ in R Blanpain (ed) Bulletin of Comparative Labour Relations (1985) 19

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of the right to freedom of association and the freedom of organization.46 Esson JA in Dolphin

Delivery Ltd v Retail Wholesale & Department Store Union, Local47 held that freedom of

association includes the right to join and take part in union activities. Every union member has

the right to jointly pursue the shared interests of its members.48 The majority decision in which

Bayda CJS and Cameron JA concurred in Re Retail, Wholesale & Department Store Union,

Locals,49 held that there is a vital connection between freedom of association, collective

bargaining and industrial action.50 Cameron JA held in his judgment that as freedom of

association protects the right to enter into unions for the function of bargaining then it follows

that this right should also include the right to participate in the bargaining process as well as the

right to strike.51 In Black v Law Society of Alberta,52 Kerans JA held that the freedom of

association includes the activities that are related to the enforcement of this freedom and

necessitate constitutional protection if they are associated to a fundamental right that is enshrined

to enforce human rights.53 In Baena-Ricardo et al v Panama54 the Inter-American Court of

Human Rights based its findings on the Committee of Experts and the CFA in deciding that the

dismissal of 270 strikers by Panama violated Article 16 of the American Convention on Human

Rights which entrenched the right to freedom of association.55 The decision of the Committee of

Experts and the CFA was endorsed in Lavigne v Ontario Public Service Employees Union56

where the court stated that the principle of freedom of association which is the protection of the

interests of individuals can only be actualised through the pursuit of other supporting rights.57

In the landmark decision of Demir and Baykara v Turkey,58 the European Court on Human

Rights (ECHR) enforced the protection of the right to strike within Article 11 of the ILO, which

46 R Ben-Israel International Labour Standards: The Case of the Freedom to Strike (1987) 93. 47 Dolphin Delivery Ltd v Retail Wholesale & Department Store Union, Local 580 (1984), 10 D.L.R (4th) 198 (B.C.C.A). 48 Dolphin Delivery Ltd v Retail Wholesale & Department Store supra note 47 at 207-208. 49 Re Retail, Wholesale & Department Store Union, Locals 544, 496, 635 and 955 and Government of Saskatchewan (1985) 19 DLR (4th) 609. 50 Re Retail, Wholesale & Department Store Union supra note 49 at 624-626. 51 Re Retail, Wholesale & Department Store Union supra note 49 at 643-644. 52 Black v Law Society of Alberta, [1986] 3 WWR 590 (Alta. C.A.). 53 Black v Law Society of Alberta supra note 52 at 612. 54 Baena-Ricardo et al v Panama, Inter-American Court of Human Rights, Merits, Reparations and Costs, Judgment of Feb. 2, 2001, Series C No. 72. 55 Baena-Ricardo et al v Panama supra note 54 at 162-163. 56 Lavigne v Ontario Public Service Employees Union (1991) 81 DLR (4th) 545. 57 Lavigne v Ontario Public Service Employees Union supra note 56 at 66. 58 Demir and Baykara v Turkey [2009] IRLR 766; 48 EHRR 54.

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enforces the right to Freedom of Association. In Demir and Baykara the ECHR dealt with an

application against Turkey which was brought by the president of the trade union, Tum Bel Sen.

The applicants claimed that their right to form unions as well as undertaking collective

bargaining and entering into collective bargaining agreements had been violated by the domestic

courts and essentially were in breach of Article 11 of the Convention, or with Article 14.

The union had engaged in a collective agreement with the Gaziantep Municipal Council for a

period of two years. According to the agreement, the municipal council was obliged to fulfill a

number of tasks and responsibilities. This, however, it did not do. Civil proceedings were then

brought to the district court, which ruled in favour of the union. However, when taken on appeal

the decision was overturned. The fourth civil division found that although the law allowed civil

servants to establish and join trade unions, they did not possess the capacity to enter into binding

collective agreements.59 In making its decision, the court made note of the fact that public

servants hold different positions in society as compared to private employees and as there was an

absence of legislation governing collective agreements concluded by public employees and

unions, the court must look at international instruments such as the ILO which would give

guidance to the court’s findings.60

When the matter was brought before the Grand Chamber, the court viewed the government’s

objection of the European Social Charter as not even being a preliminary objection because an

application cannot merely become inadmissible on the basis of the instruments, but rather until

the court has assessed its merits.61 In deciding on the case the Grand Chamber made continuous

reference to the ILO’s conventions.62 The court held that the right of public employees to

participate in collective bargaining was entrenched in international law, which included

international and regional instruments. The judiciary is required to interpret legislation in the

light of international laws.63 Collective bargaining is based on the notion that employers have

always possessed superior power in labour relations due to the fact that the employee is

dependent on the wage paid to him for work rendered. Employees are thus required to work

59 Demir and Baykara supra note 58 at 16-19. 60 Demir and Baykara supra note 58 at 20-21. 61 Demir and Baykara supra note 58 at 53. 62 Demir and Baykara supra note 58 at 64. 63 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Judgment of 30 Nov. 2010, p. 664, para 66.

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collectively to acquire adequate influence that would enable them to negotiate and bargain

successfully with their employer. Employees exercise this collective power through strike

action.64 The right to join a trade union was a right that inferred more than mere membership to

an organisation. It also included the right of a trade union to be heard through representing its

members’ interests which includes striking in order to be heard.65 Furthermore, European

practice illustrates that this right has been adopted by numerous member states. In addition, the

Grand Chamber stated that the ILO Convention No. 98 had been ratified by Turkey. There is no

evidence in this Convention that would exclude the applicant's rights based on Article 6 of the

Convention.66 Based on these findings the Chamber held that it could not accept an argument

based on the omission of law and a delay in legislation. Neither was this sufficient to nullify an

agreement that had been in place for two years and restrict the union members’ rights to freedom

of association.67

If employees were denied the right to strike then this would vitiate the common goal that the

implementation of these rights seeks to achieve as these freedoms together with the right to strike

share a reciprocal relationship.68 The right to strike has been acknowledged to be so closely

entwined with the right to organise and the freedom of association that the right to strike should

be afforded some level of constitutional protection.69 The Supreme Court of Canada (SCC)

recently affirmed the correlation between the right to strike and the right to freedom of

association in the landmark decision of Saskatchewan Federation of Labour v Saskatchewan

(SFL).70 The Saskatchewan Federation of Labour along with other unions contested the

provisions of the Public Service Essential Services Act71 (hereinafter referred to as the PSEA)

and The Trade Union Amendment Act (hereafter referred to as the Trade Union Amendment

Act)72 on the grounds that they contradicted the constitutional provisions of s 2(d) of the

64 Chairperson of the Constitutional Assembly, ex parte: In re Certification of the Constitution of the Republic of SA 1996 (4) SA 744 (CC). 65 Newspapers Ltd v Wilson, Palmer and others [1995] 2 AC 454. 66 Demir and Baykara supra note 58 at 165-166. 67 Demir and Baykara supra note 58 at 167. 68 S Leader Freedom of Association: A Study in Labour Law and Political Theory (1992) 182. 69United Federation of Postal Clerks v Blount 325 F. Supp. 879 (D.D.C), AFF’D, 404 U.S. 802 (1971); Werhof v Freeway Traffic Services GmbH & Co KG (2006) ECR I-2397. 70 Saskatchewan Federation of Labour v Saskatchewan (2015) SCC 4. 71 Act, S.S. 2008, c. P-42.2. 72 Act, S.S. 2008, c. 26.

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Canadian Charter of Rights and Freedoms73 (hereinafter referred to as the Charter). The PSEA

was the first statute in Canada that prevented essential service employees from striking. The

essential service employees were compelled to continue working according to the previous terms

of their bargaining agreement. Furthermore, the PSEA did not provide any significant framework

for resolving disputes for essential service employees such as compulsory arbitration or

additional processes for conciliating the dispute.74 The Trade Union Amendment Act increased

the necessary written support while reducing the time limit which employees had to furnish

written support. It also amended the provisions pertaining to communication between

management and employees.75

The SCC stated that in determining whether there was an infringement of s 2(d) of the Charter

there had to be an investigation into whether the intrusion on the right to strike amounted to a

considerable interference in the procedure of collective bargaining.76 The intrusion on the right to

strike should not be impaired more than is absolutely necessary. The mere fact that a service is

performed by a public employee does not automatically categorise the service as ‘essential’.77

The SCC considered that the provision under the PSESA which allows an employer of a public

employee to unilaterally make a decision that the service the employee is providing is an

essential service. The employer is also entitled to unilaterally decide how the essential service

should be carried out, as well as the classification of employees, their names and the number of

employees who are allowed to engage in the strike.78 The SCC held that these provisions of the

PSESA are an intrusion on the right to strike which exceeds what is absolutely necessary to

maintain continued essential services during the subsistence of a strike and thus causes prejudice

to the essential service employees.79 Even though the right to strike requires more stringent

regulation due to the severe impact strikes have on the disruption of vital services that the public

are dependent on, these regulations should not be so extensive that employees are prevented

from striking regardless of whether or not their services are indeed indispensable.80 International

73 Part I of the Constitution Act, 1982. 74 Saskatchewan Federation of Labour v Saskatchewan supra note 70 at 247. 75 ibid 247. 76 Saskatchewan Federation of Labour v Saskatchewan supra note 70 at 250. 77 ibid 247. 78 ibid 247. 79 Saskatchewan Federation of Labour v Saskatchewan supra note 70 at 250; Hunter v Southam Inc. [1984] 2 SCR 145. 80 International Union, U.A.W.A. v Wisconsin Employment Relations Board 336 US 245 (1949).

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law requires that individual countries’ domestic laws effectively regulate the right to strike,

however, it does not provide for a complete elimination of the right to strike without an alternate

dispute resolution procedure for essential service employees.81 Furthermore, industrial action is

an integral element of collective bargaining, thus, if industrial action is limited in such an

intrusive way that it hampers collective bargaining then strike action has to be substituted with

another dispute resolution mechanism that would be as effective as strike action.82 However, the

PSESA does not provide any substitute dispute resolution mechanism. Thus, the unilateral

entitlements of the public employer together with the lack of any dispute resolution mechanism

led the SCC to determine that the provisions of the PSESA were unconstitutional.83

The SCC was then called upon to determine the constitutionality of the Trade Union

Amendment Act. The court stated that in terms of this provision there was no interference with

the right to freedom of association as the provision merely introduced amendments to the

bargaining process which affected how a union could acquire or lose the position of a negotiating

agent.84 Furthermore, the rules which govern the relationship between employer and employee

did not largely impede with the right to freedom of association to an extent that it weakened the

right to freedom of association more than was realistically essential.85

The case of SFL supra highlighted three essential characteristics of the right to freedom of

association. The first was that employees have a right to organise and to choose a union to

bargain on their behalf, as is evident in the decision of the SCC that the provision within the

Trade Union Amendment Act which increased the requirements on how a representative could

obtain or lose his representativity was not unconstitutional.86 Secondly, the decisions in SFL

supra highlight that employees possess the right to bargain and that legislature’s restrictions on

bargaining should not excessively impair the right to freedom of association. Thirdly, the SCC

emphasised that the right to strike is an imperative component of collective bargaining.87 The

right to take joint action which includes the right to strike necessitates that the right to strike be

81 Re Alberta Union of Provincial Employees and the Crown in Right of Alberta (1980) 120 DLR (3d) 590 (Alta. Q.B). 82 Brotherhood of R.R. Trainmen v Jacksonville Terminal Co. 394 US 369 (1969). 83 Saskatchewan Federation of Labour v Saskatchewan supra note 70 at 251. 84 ibid 251. 85 ibid 251. 86 ibid 251. 87 ibid 251.

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recognised as an essential right that should be enforced through domestic laws.88 Thus, it is

undeniable that the right to freedom of association provides a channel for the implementation of

the right to engage in collective bargaining and industrial action.89

The ILO acknowledges that the rights pertaining to collective bargaining and trade unionism

which could result in strike action is one of the core foundational principles enshrined within

international labour policies.90 Collective bargaining presents a platform that enables unions to

engage in deliberations regarding conditions of employment,91 as collective bargaining seeks to

even out the battle field by instilling necessary checks and balances to prevent an abuse of power

from either party in the employment relationship.92 The right to strike is thus a crucial weapon in

the bargaining arena without which workers would be left entirely defenseless in economic

combat with employers.93

An essential component of collective bargaining is power. The employer is mindful that the

employee is dependent on him as he pays him a wage. This is the ‘power’ that the employer

possesses over the employee. However, the employee is at the same time aware that without his

labour the employer’s production would cease.94 The employee’s power is thus in his ability to

withhold his labour through the implementation of strikes. In this way the power between the

employer and the employee in the employment field is balanced which gives both the employer

and the employee equal footing during collective bargaining.95 Therefore, strike action provides

the employee with power which is essential during collective bargaining or else collective

bargaining would amount to collective begging.96 This essentially means that employees are

88 Laval un Partneri v Svenska Byggnadsarbetareforbundet, Judgment of 18 Dec. 2007 [2007] ECR I-11767. 89 Re Service Employees’ International Union, Local 204 and Broadway Manor Nursing 4 Home (1983) ONSC 4 DLR (4th) 231; Retail, Wholesale and Department Store Union, Local 544 v Saskatchewan (1985) 9 DLR (4th) 609. 90 P van der Heijden ‘International Right to Strike under Stress’ available at http://www.thehagueinstitu teforglobaljustice.org /.../ interna tional-Right-to-strike-under-stress-1372942440.pdf., accessed on 5 July 2015; Schechter Poultry Corp. v United States 295 US 495 (1935); National Labour Relations Bd. v Jones & Loughlin Steel Corp. 301 US 1 (1938). 91 C Tshoose ‘Determining the threshold for organizational rights: The legal quagmire facing minority unions resolved- South African Post Office v Commissioner Nowosenetz No [2013] 2 BLLR 216 (LC)’ (2013) 34(3) Obiter 1. 92 B Rust ‘So, you think being a trade union is plain sailing?’ (2001) 25(1) SALR 59-60. 93 Okene (note 3 above; 553). 94 D S Harrison ‘Collective Bargaining within the abour relationship: In a South African context’ (unpublished LLM thesis, University of the North-West, 2004) 6-7. 95 Crofter Harris Tweed Co. v Veitc, [1942] 1 All ER 142 (HL). 96 Ben- Israel (note 46 above; 93), German Federal Labour Court (Bundesarbeitsgericht) Judgment 10 June 1980 (Case 1 AZR 822/79).

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provided with bargaining power through strike action so that they do not have to beg the

employer to accede to their demands, but rather that they can pressurise the employer to reach

consensus during negotiations.97 The pressure that the employer experiences is through the loss

of production, the inability to conduct business efficiently and the loss profits that are a direct

consequence of the withholding of labour by employees.98 The withholding of labour through

strike action can thus be viewed as the economic power that brings an employer to agree on the

contradicting viewpoints between it and the employees.99 Thus, industrial action threatens the

employer to enter into bargaining negotiations, because the employee is supported by his or her

trade union that represents the employee’s employment interests and so can implement his power

by way of strike action if negotiations are unsuccessful.100 The right to strike is thus intrinsic to

collective bargaining. Freedom of association is necessary to facilitate collective bargaining,

which needs to be supplemented by the right to strike.101 Collectively, these rights become

indistinguishable in the pursuit of parity in the employment relationship.102

Thirdly, the right to strike necessitates protection as it improves the socio-economic position of

society. It is worth reiterating that the impetus for collective bargaining and trade unionism is to

create a symmetrical balance of power between employers and workers.103 This in turn inculcates

an ethos of social justice such as equality, acceptance and respect for fundamental human rights

and labour rights of workers as well as economic development that transcends the parameters of

employment to manifest itself within society.104 Conventionally, the right to strike was construed

as being essential to the pursuance of improved remuneration and employment conditions.105

However, it must be acknowledged that an increase in wages stimulates the economy by placing

more disposable income in the hands of the working.106 Furthermore, an improvement of

working conditions has a synonymous effect, as this leads to a happier workforce results in 97 B.R. Singh v Union of India [1999] Lab IC 389 (396) (S.C.), Gujarat Steel Tubes v Its Mazdoor Sabha AIR (1980) SC 1896. 98 Kairbitta Estate v Rajmanickam [1960] II LLJ 275 (SC). 99 Syndicate Bank v K. Umesh Nayak [1994] II LLJ 836 (SC). 100T Kalusopa, K Otoo & H Shindondola-Mote ‘Trade Union Services & Benefits in Africa’ available at http://www.ituc-africa.org /IMG/pdf/BENEFITS _REPORT _FINAL_DRAFT. pdf., accessed on 15 September 2015. 101 Mounted Police Association of Ontario v Canada (2005) SCC 1. 102 Cohen & Matee (note 32 above; 1631), Health Services and Support-Facilities Subsector Bargaining Assn v British Columbia [2007] 2 SCR 391, [2007] SCC 27. 103 A Bogg The Democratic Aspects of Trade Union Recognition (2009) 255. 104 Chicktay (note 2 above; 262). 105 Nkabinda (note 14 above; 276). 106 ibid 276.

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greater productivity. Therefore, this could be a probable way in which the socio-economic

welfare of society could be ameliorated.107 The Committee of Experts has reaffirmed that the

right to strike far surpasses its primary role in improving working conditions, but it can also

assist in “solutions to economic and social policy questions and to labour problems of any kind,

which are of a direct concern to workers”.108 The CFA confirmed the sentiments of the

Committee of Experts by stating that strike action is an integral component of trade union

activities and is a fundamental mechanism accessible to employees to promote and protect their

social and economic concerns.109

3.3 THE NECESSITY FOR LIMITATIONS ON THE RIGHT TO STRIKE

As was previously discussed, the right to strike is indeed a paramount right which requires

protection within international and regional law.110 The protection that this right necessitates

personifies its vital responsibility and significance within society.111 It is therefore crucial that

effective restrictions and limitations are enforced to prevent an abuse of this right and ensure that

the implementation of strikes is effected in an orderly manner.112 Even though the right to strike

has been described as an essential right, it cannot be regarded as an absolute right and is

therefore subject to limitations which are enshrined in legislation and are vital to freedom and

democracy, including the protection of fundamental rights and morals, health and security and

the general concern over public interest.113

The right to strike is regarded as a ‘fundamental right’. Hence, no law can explicitly exclude

specific categories of workers from embarking in strike action. However, workers engaged in

essential services may be restricted from this right on the basis that the furtherance of their work

is guaranteed through legislation and is validated by concern over the interests of society.114 The

ILO identifies three groups of workers that may not engage in strike action, these being workers 107 Matee (note 36 above; 12). 108 ‘Freedom of Association and Collective Bargaining: General Survey by the COE on the Application of Conventions and Recommendations, Report 111(48)’ International Labour Law Conference 69 Session, Geneva (1983) para 200. 109 Freedom of Association Digest 1985, para 360. 110 M Fichter & D Stevis ‘International Framework for Assessment of US Labour Standards’ available at http://www.law.upenn.edu/.../ Herrnstadt10U.Pa.J.Bus.&Emp.L.187(2007).pdf., accessed on 15 September 2015. 111 Okene (note 3 above; 194). 112 The Rail, Marine, and Transport Workers v U.K 1045/10-Chamber Judgment [2014] ECHR 366 (8 April 2014). 113 Servais (note 15 above; 17). 114 ibid 17.

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who form part of essential services such as the police or the nation’s armed forces and specific

public officers who exercise authority on behalf of the country.115 Essential services have been

categorised as a service whose “… interruption … would endanger the life, personal safety or

health of the whole or part of the population”.116 This prohibition on essential service employees

is applicable to workers in both private and public services, which are deemed to be essential, or

conditionally, that there is an unequivocal or impending danger to the welfare, wellbeing or right

to life of society at large or a part thereof.117 The CFA noted that the purpose for restricting

strikes in essential services would be distorted if there was no clear distinction made between

undertakings involving the state and those of essential services. Therefore, the CFA sought to list

various services which constitute essential services. These are “the police and armed forces,

firefighting services, prison services, provision of food to pupils in schools, cleaning of schools

and air traffic control services”.118 Even though these institutions engaged in essential services

are prohibited from striking, this does not guarantee that such employees will never engage in

strikes nor does it ensure the safety of employees during the subsistence of a strike.119 These

bans on strikes by employees in essential services have been upheld in numerous constitutional

cases brought before the courts.120

In order to determine how the right to strike should be limited with regard to essential service

employees, the judiciary is required to apply the test of proportionality.121 In Regina v Oakes,122

the Supreme Court of Canada (SCC) stated that there is a two stage inquiry to determine the

proportionality of limiting a constitutional right. The SCC stated that the first stage necessitates

an inquiry into the way in which the particular legislation contravenes the constitutional rights.123

115 Matee (note 36 above; 13). 116 Freedom of Association: 1985 Digest, para 540-564. 117 Servais (note 15 above; 4). 118 Matee (note 36 above; 22). 119 D T Masiloane ‘Guaranteeing the safety of non-striking employees during strikes: The fallacy of policing’ (2010) 23(2) Acta Criminologica 35. 120 M S Weiss ‘The right to strike in essential services under United States labour law’ available at http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2189&context=fac_pubs., accessed on 15 September 2015. 121 Sunday Times Case 30 ECHR (Ser. A) 1 (1979). 122 Regina v Oakes [1986] 1 SCR. 103, Ts’epe v IEC and Others (2005) AHRLR 136 (LeCa 2005). 123 Regina v Oakes supra note 122 at 135.

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The second stage necessitates an investigation into whether the legislation endorsed is evidently

and reasonably justifiably reasonable.124

Even though the ILO places limitations and restrictions on the right to strike, it does not condone

the enforcement of overly constrictive limitations. The CFA has indicated that the restricting

conditions implemented on the right to strike should be reasonable and not restrict the actions of

unions without just cause.125 This essentially infers that a strike should only be limited if it

threatens the public interest of society and would be detrimental to the health and safety of

individuals.126 The Californian Supreme Court analysed the term ‘essential services’ undertaken

by public employees in County Sanitation Dist. No. 2 v. Los Angeles County Employees' Assn127

and for the first time in Canada the Judiciary permitted public employees to engage in strike

action. In July 1976 approximately 75% of the employees of Sanitation District engaged in an 11

day strike over failed wage negotiations. An injunction was obtained to restrain the strike,

however, the injunction was futile as the strike continued. The service which these employees

rendered were regarded not only as public services but also essential services. Their services

included providing and maintaining sewage and treatment facilities across the country. During

the strike the District was able to secure some of its operations through the labour of

management and non-striking employees. The employees then accepted a new offer which ended

the 11 day strike. The District immediately proceeded with instituting action for civil damages as

a result of the strike. The high court first considered the common law position of striking public

employees. The high court considered that there was no clear direction from legislation on

whether all public employees should be prohibited from striking.128 The court also analysed other

cases that stated that if there was an absence of legislation authorising strike action by public

sector employees then such an action undertaken by these public employees would be illegal.129

124 Regina v Oakes supra note 122 at 136. 125 B Gernigon, A Odero & H Guido ‘ILO principles concerning the right to Strike’ (1998) 137(4) International Labour Review 42. 126 School Committee of the Town of Westerly v Westerly Teachers Ass’n 299 A 2d 441 (1975). 127 County Sanitation Dist. No. 2 v. Los Angeles County Employees' Ass. 38 Cal 3d 564 (1985). 128 El Rancho Unified School Dist. v National Education Assn. 33 Cal 3d 946 (1983). 129 Los Angeles Met. Transit Authority v Brotherhood of Railroad Trainmen (1960) 54 Cal 2d 684, In Re Berry (1968) 68 Cal 2d 137, City and Country of San Francisco v Cooper (1975) 13 Cal3d 898.

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These cases based their view on the postulation that strikes by public employees were a revolt

against the government and would lead to chaos and immense disruption.130

In Sanitation District supra the Supreme Court rejected the lengthy line of precedent and stated

that the prohibition on striking public employees is no longer supported. The court reasoned that

the outmoded precedent which prevented public employees from striking was based on the

notion that the government was sovereign and could not be questioned because they could never

be accused of doing wrong.131 The Supreme Court also stated that these cases do not

acknowledge that that there is an imbalance between the socio-economic interests of employees

and large-scale enterprises and government organisations.132 Furthermore, the line of precedent

failed to take into account the modern reality that employers possessed more power than

employees and that the law in modern society sought to empower employees to overcome this

imbalance of power.133 Bird CJ held that the only way of effectively combating this imbalance of

power and opposing the abuse inflicted by employers is through the constitutional right to

strike.134 The Supreme Court stated that due to the size and power of government as well as the

undertaking of a wide variety of services by government this necessitated that public sector

employees be treated the same as private sector employees.135 Thus, the Supreme Court held that

the common law position which prohibited all public sector employees from striking could not

be supported.136 The court acknowledged though, that there were public services which were

regarded as essential whose disruption would be detrimental to the safety and health of the

public.137 If the employees within these essential services engaged in strikes then their actions

would be deemed illegal.138 The case of Sanitation District supra illustrates that there is a

distinction between the services undertaken by public sector employees and services undertaken

by public employees engaged in essential services.139

130 City of Cleveland v Division 268, 41 Ohio Op. 236, 90 N.E.2D 711 (1949), Board of Education v Shanker 54 Misc. 2d 941, 283 NYS 2d 548 (Sup. Ct. 1967). 131 County Sanitation Dist. No. 2 supra note 139 at 432. 132 Anderson Fed’n of Teachers v School City of Anderson, 252 Ind. 558, 251 NE 2d 15 (1969). 133 County Sanitation Dist. No. 2 supra note 139 at 432. 134 County Sanitation Dist. No. 2 supra note 139 at 444, Texas & New Orleans R.R. Co v Brotherhood of Ry. And S.S Clerks 281 U.S. 548, 570 (1930). 135 County Sanitation Dist. No. 2 supra note 139 at 431. 136 County Sanitation Dist. No. 2 supra note 139 at 567. 137 County Sanitation Dist. No. 2 supra note 139 at 580. 138 County Sanitation Dist. No. 2 supra note 139 at 586. 139 United States v United Mine Workers 330 US 258 (1947), Helvering v Gerhardt, 304 US 405, 427 (1938).

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In another landmark case of the ECHR, the Grand Chamber affirmed that Article 11 of the ILO

contained the right to strike which was enforced through the case of Enerji Yapi-Yol Sen v

Turkey.140 The case dealt with a Turkish trade union which represented public employees

employed in various field such as motorway construction, energy, registration of land and

roadworks. The union expressed its intention to strike in 1996.141 This was countered with the

government’s immediate ban on striking by all civil employees which was expressed in the form

of a circular. The members of the union, notwithstanding the circular, engaged in industrial

action and accordingly received disciplinary action. As a result of obtaining no recourse in the

domestic courts of Turkey, the union escalated the matter to the ECHR on the basis that the

ministerial circular which was handed to the union breached the employees’ right to engage in

trade union activity.142

The Grand Chamber approached the matter based on the decision handed down in Demir supra.

The court first considered whether the Turkish government had infringed the employees’ rights

enshrined in Article 11 of the ILO. The ECHR stated that the Grand Chamber compels countries

to develop laws that allow trade unions to battle for the rights of their members within the legal

limits provided by Article 11.143 The ECHR affirmed that “the strike which allows the unions to

make their voice heard constitutes an important aspect for the members of a union to protect their

interests”.144 The court stated that this assertion is supported by the fact that international

instruments such as the ILO and the ESC have enunciated that the right to strike, the right to

collective bargaining and the right to trade unionism are inseparable rights which are

fundamental to the pursuit of employees’ rights. The ECHR was thus satisfied that the court

should give effect to the right to strike especially in light of the significance that these

international instruments mentioned above have placed on the right to strike and its connection to

collective bargaining and trade union rights.145

The ECHR then considered whether the circular which entrenched the ban on striking by all

public employees interfered with the right to trade unionism. The ECHR determined that the

140 Enerji Yapi- Yol Sen v Turkey, Application No 68959/01, Decision 21 April 2009. 141 Enerji Yapi- Yol Sen v Turkey supra note 140 at 11. 142 ibid 11. 143 Enerji Yapi- Yol Sen v Turkey supra note 140 at 24. 144 ibid 11. 145 Enerji Yapi- Yol Sen v Turkey supra note 140 at 24.

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circular was vague and included all public employees who were banned from striking. This was

deemed to be excessive in a democratic society.146 The ECHR held that the right to strike was

not regarded as an absolute right but was subject to a number of limitations and conditions.

Therefore, the ban on strikes should only be acceptable for employees engaged in essential

services. The ECHR emphasised that there are categories of workers who can be prohibited from

striking based on the type of service that they provide, however, this ban cannot extend to all

public employees.147 The court stated that a reasonable and lawful restriction on the right to

strike would clearly indicate the types and categories of employees who could engage in strikes

as well as those employees who could not engage in strikes.148 The ECHR held that the circular

sent out by government did not indicate the categories of workers who could strike and those

who could not strike. The circular was elusive and included all the public employees employed

by government and did not adequately balance the rights of the employees and the requirements

enshrined in Article 11(2).149 Therefore, the ECHR held that the rights of the Turkish employees

to engage in trade union activities were infringed.150

The case of Enerji Yapi-Yol Sen v Turkey elucidates that member states that have ratified the

Conventions of the ILO are compelled to promulgate national laws and interpret legislation

which generally or specifically restrict the right to strike in accordance with the ILO’s

Conventions.151 Furthermore, the ratification of the European Community Social Charter of the

Fundamental Social Rights of Workers, ratified by 11 European Council, states and has stated,

that the “right to resort to collective action in the event of a conflict of interests shall include the

right to strike subject to the obligations arising under national regulations and collective

agreements”.152 The United States of America (US) has promulgated legislation, namely the

National Labour Relations Act (29 USC 151 (2006), (hereinafter referred to as the NLRA),

which protects the rights to strike. In terms of s 7 of the NLRA, the right to strike, the right to

freely engage in collective bargaining as well as the right to freedom of association forms the

146 Enerji Yapi- Yol Sen v Turkey supra note 140 at 32. 147 ibid 32. 148 ibid 32. 149 ibid 32. 150 ibid 32. 151 No. 86 1948 and No. 98 of 1949, Ontario (Attorney General) v Fraser, 2011 SCC 20, [2011] 2 SCR 3, Health Services and Support-Facilities Subsector Bargaining Ass’n v British Columbia, 2007 SCC 27, [2007] 2 SCR 391. 152 W McCarthy Legal Intervention in Industrial Relations: Gains and Losses (1992) 153.

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basis of the NLRA. In terms of s 13, the NLRA unequivocally states that there should be no

interpretation of the NLRA that would encumber the right to strike.

However, the Judiciary’s interpretation of the NLRB has been inconsistent with the values

enshrined in the international instruments mentioned above. This inconsistency is evident in the

case of NLRB v Mackay Radio & Telegraph Co.153 The American Radio Typographists

Association (ARTA) entered into negotiations regarding an increase in wages, union recognition,

hours of work and the enforcement of a contract of employment, failing which the union

threatened strike action. As a result of failed negotiations a two day strike commenced. The

company hired 11 men during the strike to maintain the functionality of one of their offices.

After the strike had been declared unsuccessful, the company announced that the entire

workforce could return to work with the exception of the 11 men who were replaced during the

strike. The company did indicate that these 11 strikers could be rehired provided that posts

opened up. Two days later, the company rehired 7 of the 11 strikers as posts became available.

The four men who had not been rehired, were the strongest supporters of the union.154

The ARTA directed a complaint to the NLRB. The Board transferred the matter to the national

board, which decided that the four men had been discriminated against due to their affiliation to

the union. The company declined to enforce the decision of the Board, which was then referred

to the Ninth Circuit Court of Appeals. Justice Roberts summed up the judgment in addressing the

issue of the constitutionality of the NLRA and the issue of replacing posts of striking employees

by referring to s 13 of the NLRA,155 and stating that:

“it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create a place for them”.156

This decision effectively weakens the right to strike as the court construes striking as a freedom

and not a right. With regard to freedoms, there is no duty to prevent a person from acting. If

employees are given the freedom to engage in a strike, an employer would not have a right to

stop that employee from engaging in the strike. However, at the same time the employer does not

153 NLRB v Mackay Radio & Telegraph Co 304 US 333 (1938). 154 'Radio men call strike' New York Times 5 October 1935 at 3. 155' Radio operators begin walkout' New York Times 6 October 1935 at 1. 156 NLRB v Mackay Radio & Telegraph Co supra note 153 at 345-346.

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possess a positive duty to not interfere with the strike.157 The decision in Mackay supra has been

criticised by the international community as the replacement of striking employees’ posts

prejudices and unreasonably limits an employee’s right to engage in protected strike action. An

employee cannot effectively assert the right to strike if there is a fear that if the employee

engages in a strike then there is a possibility that his or her post will be replaced. Therefore, the

whole process of collective bargaining is rendered futile, as it curtails the equal footing that the

bargaining table is supposed to instill because employers would be allowed additional power

over the employee by hiring replacement labour.158 This in turn is a violation of international

frameworks such as the ESC,159 the ILO Conventions Nos.86 and 98, which enshrine the right to

effective collective bargaining and trade union rights, as well as the ECHR,160 which give effect

to right such as freedom of association and freedom of assembly that ultimately facilitates

productive collective bargaining.

The European Court of Justice in the leading case of ITWF v Viking Line ABP,161 has highlighted

core human rights issues regarding the right to freedom of establishment and when it is

permissible to limit the right to strike.162 In ITWF supra, Viking Line operated a ship named The

Rosella between the areas of Finland and Estonia. It decided to carry its operations under the

Estonian flag, so that it could reduce its costs by replacing the highly paid Finnish crew with an

Estonian crew who earned lower wages. The ITWF had a policy against ‘reflagging’ of ships for

convenience in areas where the labour cost was lower, when in reality their seat was in another

country. An affiliate member of the ITWF, the Finnish Seamen’s Union, planned strike action.

The ITWF advised its members to not enter into negotiations with Viking, as this would obstruct

its business. Viking then sought an injunction, claiming that the proposed strike action would

157 E C O’Neil ‘The right to strike: How the United States reduces it to the freedom to strike and how international framework agreements can redeem it’ (2012) 2(2) Labor & Employment Forum 218. 158 R Welch ‘Right to Strike in UK and South African Law: A Comparison’ (2000) 7(1) International Union Rights 26. 159 Article 6(4) of the ESC. 160 Article 11 of the ECHR. 161 ITWF v Viking Line ABP [2008] IRLR 143 (C-438/05), Laval un Partner: Ltd v Svenska Byggnadsarbetare-forbundet, 18 December 2007 [2007] ECR 1-11767, OU Viking Line Esti [2007] ECR I-10779 (Viking Line), Rechtsanwalt Dr. Dirk Ruffert v Land Niedersachsen [2008] ECR I-1989, Commission of the EC v Luxembourg [2008] ECR I-4323. 162 A Davis ‘One step forward, two steps back? The Viking and Laval cases in the ECJ’ (2008) 37(2) Industrial Law Journal 128.

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infringe their right to freedom of establishment provided for in TEC, article 43 (now amended to

article 49 of TFEU).

The High Court of Justice granted the order, which was subsequently reversed by the Court of

Appeal of England and Wales. The matter was then taken before the European Court of Justice.

In reaching its decision, the court made reference to international instruments, which protect

collective bargaining and the right to strike, such as the European Social Charter and Convention

No. 87 of the ILO regarding the freedom of association and organisation. The court also

highlighted the instruments enacted at national or community level such as the Charter of

Fundamental Rights of the European Union.163 The case law regarding fundamental rights is

highly dependent on the ECHR as well as the constitutions of ILO member states. Unions are

confronted with a massive problem when defending their rights, as the right to strike is not

explicitly contained in Article 11 of the ECHR.164 The Charter of Fundamental Rights of the

European Union states that the right to strike must be protected in accordance with the laws at

community and national level.165 The court also observed that the right to strike for promoting

the protection of workers can be regarded as a legitimate interest, which justifies a restriction of

one of the principle rights which the Charter of Fundamental Rights of the European Union

provides for, such as the freedom of establishment. Furthermore, the rights of workers are to be

regarded as one of the overriding reasons of the public concern acknowledged by courts.166

The court stated that even though the right to collective bargaining and the right to strike has

been credited as a ‘fundamental right’, this does not mean that it is exempt from restrictions.

“The right to strike may not be relied on, in particular, where the strike is contra boni mores or is

prohibited under national law or community law”.167 Even though the courts have acknowledged

that there is a positive right to strike; this right is subject to the limitations enshrined in national

laws. This essentially means that any member state of the ILO may limit the right to strike either

generally or specifically through the enforcement of the member state’s national law, however,

163 ITWF v Viking Line ABP supra note 161 at 43. 164 A Davies ‘The right to strike versus freedom of establishment in EC law: The battle commences’ (2006) 35(1) Industrial Law Journal 82. 165 Article 28 of the Charter of the Fundamental Rights of the European Union. 166 ITWF v Viking Line ABP supra note 161 at 77. 167 ITWF v Viking Line ABP supra note 161 at 44.

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the member state has to ensure that such limitations are in compliance with the Convention No.

87 and Convention No. 98.168

3.4 THE ENTRENCHMENT OF THE RIGHT TO STRIKE IN INTERNATIONAL

INSTRUMENTS

3.4.1 THE INTERNATIONAL LABOUR ORGANISATION (ILO)

The ILO was established in 1919169 and is regarded as a specialised bureau within the United

Nations. The ILO serves as a custodian of international labour standards which are contained in

its recommendations and conventions.170 The ILO postulates that there is a necessity to formulate

an economic and social framework that would provide the building blocks for employment and

security, synonymously with retaining the ability to adapt to increasing competition globally.171

The conventions and recommendations of the ILO have had a significant impact on international

labour law. It accomplishes this through two methods. The first is that when countries ratify

conventions of the ILO, they fall under the umbrella of the ILO’s supervisory framework. The

second method is that the ILO provides technical assistance to countries in an attempt to

facilitate the implementation of their policies.172

It is imperative to highlight that there is no explicit reference to the right to engage in strikes in

the ILO conventions. A possible explanation for the exclusion of the right to strike was that both

ILO conventions were signed into force during a prevalent communist sphere that subsisted after

the Cold War. Therefore, the western community was wary of enforcing socio-economic rights.

At the time the ILO was enforced, an Anglo-American position was established, which separated

freedom of association to be given protection under first generation rights and the right to engage

in strike action as socio-economic in nature.173 Britain was the key player in the ILO’s

168 Manamela & Budheli (note 5 above; 316). 169 M Hamalengwa, C Flinterman & E V O Dankwa The International Law of Human Rights in Africa (1988) 15. 170J Kloosterman ‘The Right to Strike? The ILO’s Freedom of Association Convention’ available at http://www.Georgezgeorgiou .com/wp-content/plugins/.../download.php?id=40, accessed on 15 September 2015. 171 P Benjamin ‘Labour market regulation: international and South African perspectives’ HSRC Employment & Economic Policy Research Programme (2005) 7. 172 C Fenwick, E Kalula & I Landau ‘Labour Law: A Southern African Perspective’ International Institute for Labour Studies, Geneva (2007) 7. 173 Novitz (note 16 above; 4).

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establishment as well as its consolidation and progression during the inter-war period that gave

rise to the 1948 and 1949 conventions which form the basis of the right to strike as will be

discussed in detail further on in the chapter.174

It is imperative to note that the ILO does not contain any express right to engage in strike

action.175 This should not lead to the assumption that the ILO discounts or refrains from creating

a framework that seeks to protect and advance the right to strike.176 However, the right to strike

can be construed from the pronouncements of the IOL’s supervisory instruments,177 such as the

Committee of Experts on the Application of Conventions and Recommendations (CEACR),178 as

well as the ILO’s Governing Body Committee on Freedom of Association (CFA).179 Firstly, the

right to strike can be inferred from the ILO’s two foundational conventions, which are, the

Freedom of Association and Protection of the right to Organize Convention No. 87 of 1948180

and the Right to Organize and Collective Bargaining Convention No. 96 of 1949.181 Both the

CEACR and the CFA have enunciated that the right to strike cannot be isolated from the rights

entrenched in the ILO Conventions above which are the Freedom of Association and the right to

engage in collective bargaining and trade unionism, as these rights together form the impetus for

employers and employees to reach consensus on disputes.182

Of the 185 parties to the ILO, 153 states have ratified the No. 87 Convention and 163 states have

ratified the No. 98 Convention.183 Even more so both these conventions constitute the ILO

Declaration on Fundamental Principles and Rights at Work (1998), which is esteemed as the core

174 B Creighton ‘The ILO and protection of freedom of association in the United Kingdom’ in K D Ewing, C A Gearty & B A Hepple (ed) Human Rights and Labour Law: Essays for Paul O’Higgins (1994) 3. 175 Dalton & Groom (note 44 above; 1). 176 Gernigon, Odero & Guido (note 125 above; 7). 177 ILO Freedom of Association and Collective Bargaining 1994 at para 142. 178 The CEAR was established by way of a resolution adopted at the International Labour Conference in 1926 to supervise and report on member states adherence to the ILO’s policies. 179 The CFA was established through the ILO’s Executive Council’s Governing Body in the year 1951. The Committee is tasked with the supervision of the Freedom of Association Convention. It inspects complaints regarding member states non-compliance with core principles regulating Freedom of Association. 180 The Freedom of Association Convention was opened for signature on 17 July 1948 and entered into force generally on 4 July 1950. 181 The Right to Organize and Collective Bargaining Convention was opened for signature on 1 July 1949 and entered into generally on 18 July 1951. 182 S Leader ‘Can you derive a right to strike from the right to freedom of association?’ (2009) 15 Candian Labour and Employment Law Journal 3. 183 The conventions of the ILO (No. 87 and No. 98) have been signed and ratified on 19 February 1996. Upon South Africa’s readmission to the ILO, these conventions were ratified, which created compulsory requirements under the banner of international law.

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principles of International labour standards. Every constituent to the ILO, which has enforced

these conventions are compelled to give effect to the terms enshrined in these conventions.184

Articles 3, 8 and 10 contained in the Freedom of Association Convention form an integral basis

to the right to strike. Article 3 pertains to the rights of unions to freely and collectively organise

themselves and engage in activities as well as enforcing the prohibition on any interference that

would in any way constrict organisations from lawfully exercising this right. Article 8 stipulates

that the national laws which are enacted to regulate organisations should not in any manner

impede or impair the rights of organisations guaranteed within the convention. Article 10

specifies that the word ‘organisation’ refers to any workers’ organisation or organisation of an

employer which is purposed for the advancement and protection of the interests of its

members.185

The Committee has consistently reaffirmed that the right to strike is intrinsic to the essence of

workers’ rights and that of organisations. The particular use of the word ‘worker’, rather than

‘trade union’, elucidates that the Committee emphasises that federations as well as

confederations together with trade unions, should not be prevented, either directly or indirectly

through state legislation, from exerting the right to strike.186

The Committee has further highlighted that the lawful implementation of strike action should not

cause sanctions or punishments that would amount to anti- union discrimination that would

contradict the intent and purpose of the Right to Organize and Collective Bargaining Convention

1949 (No. 98).187 The Committee has made various rulings in accordance with these principles,

such as in Jamaica where strike action resulted in the state banning union meetings. The

Committee decided that the right to strike as well as conducting trade union meetings is

imperative to the rights of trade unions.188

184 G E Yeyeye ‘Trade unions in Tanzania: A wolf in sheep’s clothing? (2014) 5(1) Open University Law Journal 71. 185 Okene (note 3 above; 555). 186 ibid 555. 187 Okene (note 3 above; 556). 188 Bellace (note 28 above; 19).

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In addition to the two ILO Conventions (No. 87 and No. 98), the ILO has formulated resolutions

which have been adopted to give effect to the right to strike.189 One of these is the resolution

concerning the Abolition of Anti- Trade Union Legislation in the States’ members of the

International Labour Organization that was adopted in 1957. This resolution provides for “the

effective and unrestricted exercise of trade union rights, including the right to strike, by

workers”. The second is the resolution concerning Trade Union Rights and their Relation to Civil

Liberties, which was adopted in 1970. This resolution entails, “further action to ensure full and

universal respect for trade union rights in the broadest sense”, in particular the, “right to

strike”.190

3.4.1.1. REPORTING PROCEDURE

All member states which are party to the ILO are required to produce reports at various points in

time detailing the mechanisms they have adopted to carry out the provisions detailed in the

conventions. Representatives of workers’ unions and employers’ associations are entitled to

critique these reports.191 Constituent states are required to submit reports on,

“the position of the law and practice in their countries in regard to matters dealt with in the Recommendation, showing the extent to which effect has been given, or is proposed to be given to the provisions of the Recommendations and such modifications of these provisions as it has been found or may be found necessary to make in adopting or applying them”.192

The Committee of Experts (CoE) then examines these remarks and makes various comments,

which are then presented as a report at the International Labour Conference (ILC). These reports

are further examined by the Committee on Application of Standards (CAS), from where a

conclusion is then drawn. The end products of both these committees are publicised. Where

member states have deviated from compliance, they are requested to then bring into line their

policies or practices in keeping with ILO provisions. The ILO also provides technical support to

member states to ensure that their suggestions are implemented.193

The CoE and the CFA maintain a relationship of concurrence in their decisions in order to

sustain consistency within the ILO’s supervisory framework. Even though the CoE and CFA

189 Gernigon, Odero & Guido (note 125 above; 783). 190 ILO 1970 pp 735-736. 191 L Betten The Right to Strike in Community Law (1985) 185. 192 Article 19, para 6(d) of the Constitution of the ILO. 193 Van der Heijden (note 27 above; 2-3).

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vary in composition and their supervisory functions, the committees undertake the application of

universally approved principles, which are not selectively enforced.194

3.4.2 THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND

FUNDAMENTAL FREEDOMS (ECHR)

Regional human rights are imperative frameworks, which are key role players in the

development of national laws. There are three human rights systems which regulate European

countries, two of which will be discussed under this section, namely the European Convention

for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the European

Social Charter (ESC).195 In 1950 the ECHR was adopted by the Council of Europe, and

explicitly entrenches the protection of civil and political rights, while excluding the protection of

socio-economic rights. This has led to numerous controversies regarding the right to strike.196

The reason socio-economic rights had been explicitly excluded from the ambit of the ECHR was

due to a view held that socio-economic rights were not at that time being completely observed,

and that only in years to come would European countries be able to fully afford all citizens with

equivalent respect. It was postulated firstly to be essential to establish civil and political

democracy.197 Therefore, the ECHR does not contain an express right to strike action. However,

numerous members of the ECHR have consistently asserted that the right to strike can be derived

from Article 11 of the ECHR, which provides for the right to freedom of association.198

However, ten years into the adoption of the ECHR, social and economic rights were included in

the European Social Charter (ESC), which came into effect in 1961.199 The ESC was regarded as

the first treaty to bind international states to explicitly protect and recognise the right to strike.200

The ESC expressly entrenches the right to strike in Article 6(4) which provides for “the right of

workers and employers to collective action in cases of conflicts of interest, including the right to

strike, subject to obligations that might arise out of collective agreements previously entered

194 Bellace (note 28 above; 63). 195 S Hardy Labour Law and Industrial Relations in Great Britain (2007) 57. 196 R O’Gorman ‘The ECHR, the EU and the weakness of social rights protection at the European level’ (2011) 12(10) German Law Journal 1844. 197 Betten (note 191 above; 19). 198 Hardy (note 195 above; 231). 199 Betten (note 191 above; 18). 200 D Harris & J Darcy The European Social Charter 2nded (2001) 2.

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into”.201 Even when the Article was revised in 1996, Article 6(4) remained unchanged.202 This

provision provides the foundation for which employees may exercise their right not only for the

right to strike but also for an employer’s right to collective action in the form of lock outs.203

Article 6(4) does not make any reference on who may authorise strikes. Thus, the Article opens

the door for deciding which groups would be afforded this right. Although, any decision taken

must be in accordance to the limiting provisions that are enshrined in Article 31 of the ESC.204

The ESC acts as a reporting mechanism on the ILO’s policies and constituents of the ILO. The

European Committee on Social Rights is assigned to supervise member states’ compliance with

ESC provisions.205 The European Committee on Social Rights is comprised of subcommittees

such as the Independent Experts Governmental Committee and the Parliamentary Assembly of

the Council of Europe. These committees include expert delegates from member states of the

Council of Europe.206 Member states of the Council of Europe are required to submit biannual

reports of their compliance with the ESC provisions to the Council of Europe’s Secretary-

General. The Committee of Independent Experts examines these reports.207 There are essentially

two mechanisms which the European Committee on Social Rights adopts to supervise member

states’ compliance with the ESC.208 The first mechanism is through the Collective Complaints

Procedure which are complaints submitted by non-governmental organizations and social

partners of the Council of Europe.209 The European Committee of Social Rights investigates the

report according to formal requirements to decide on whether the complaint will be allowed. The

European Committee of Social Rights then examines the merits of the complaint. Their decision

is then submitted in the form of a report to the relevant parties as well as to the Committee of

Ministers. This report is publicised within a four month period of its submission to the relevant

201 Article 6(4) of the ESC. 202 ESC (revised), 1996 (ETS 163). 203 S Evju ‘The right to collective action under the European Social Charter’ (2011) 2(3) European Labour Law Journal 199. 204 A T Jacobs The Law of Strikes and lock outs: Comparative Labour Law and Industrial Relations (2007) 642. 205 Article 21-29 of the ESC. 206 Van der Heijden (note 193 above; 3). 207 H R Troskie A comparative survey of the law relating to strikes in South Africa and the Netherlands (unpublished LLM thesis, UNISA, 1998) 49. 208 ibid 49. 209 Council of Europe ‘Collective complaints procedure: an overview’ available at http://www.coe.int/en/web/turin-european-social-charter/collective-complaints-procedure1, accessed on 28 December 2015.

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parties.210 The second mechanism that the European Committee of Social Rights follows is the

Reporting System. The Reporting System comprises of reports that have been submitted to the

European Committee of Social Rights by member states.211 The decisions which are agreed upon

by the European Committee of Social Rights are termed ‘conclusions’ and are published on a

yearly basis.212 Although these conclusions are revered by the member states they are not

enforceable in member states’ national laws. Essentially, this means that even if the European

Committee of Social Rights concludes that the report submitted by the member state was not in

compliance with the ESC, the decision cannot be enforced through that state’s national

legislation.213

3.4.3. AFRICAN CHARTER

The Organization of African Unity (OAU) adopted the African Charter as a means of protecting

the fundamental rights of African people. This decision was a milestone within the African

continent as for the first time African leaders acknowledged that violations of human rights

cannot be tolerated within Africa and that the rights of individuals should coincide with the

standards entrenched by the international community.214 The African Charter has received

universal ratification as the members of the African Charter are also members of the African

Union. This means that member states of the African Charter are obliged to ensure that their

domestic laws conform to the standards of the international community and the African

Charter.215 The African Charter has become the basic and fundamental regional instrument that

has been enshrined to protect and promote human rights within the African continent as well as

create unity between all African member states of the African Charter.216

The African Charter is the first international convention on human rights to secure every

category of human rights within one instrument. The African Charter enshrines civil and political

210 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, Treaty No.158. 211 Article 21-29 of the ESC. 212 ‘The reporting procedure: an overview’ available at http://www.coe.int/en/web/turin-european-social-charter/reporting-system, accessed on 28 December 2015. 213 Protocol amending the European Social Charter, Treaty No. 142. 214 C R M Dlamini ‘Towards a regional protection of human rights in Africa: the African Charter on Human and Peoples' rights’ (1991) 24(2) CILSA 193. 215 A Jibril ‘Derogation from Constitutional rights and its implications under the African Charter on Humans and Peoples Rights’ (2013) 17 LDD 79. 216 J C Mubangizi The Protection of Human Rights in South Africa (2004) 26-27.

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rights which are regarded as first generation rights.217 However, it is imperative to also note that

the African Charter enshrines social and economic rights which are regarded as third generation

rights. Therefore, the African Charter provides the basis for the right to strike by enshrining the

“right to economic, social and cultural development forms”.218 The African Charter does not

make any explicit reference to the right to strike, however, Article 10(1) of the African Charter

entrenches the right to freedom of association and Article 11 entrenches the right to freedom of

assembly which have been connected to the right to strike as well as Article 5 which prohibits

slavery. Furthermore, Article 15 provides that all individuals are entitled to perform “work under

equitable and satisfactory conditions”.219 Even though Article 15 is vague in its scope of what

constitutes “equitable and satisfactory conditions”, this Article together with the socio-economic

rights entrenched in Article 22 give effect to the right to strike, as striking has been

acknowledged as a mechanism to further employees’ socio-economic rights which was discussed

previously in the chapter.220

The African Commission on Human and Peoples Rights (ACHRP) has been appointed as a

supervisory body to ensure compliance with the provisions enshrined in the African Charter. The

ACHRP has affirmed that the provisions discussed above must be interpreted from the viewpoint

of when workers were enslaved during colonisation. Therefore, ACHRP has also reasoned that

the drafters of the African Charter sought to remind African governments of the painful past of

black workers in order to develop their socio-economic interests at present.221 The ACHRP has

affirmed that social and economic rights are fundamental components of human rights within the

African continent.222 The ACHRP has thus construed the Articles discussed above as an

enforcement of the right to join and form trade unions as well as the right to strike that would

217 Article 2-13 of the African Charter. 218 Article 22 of the African Charter. 219 T Novitz Laws against Strikes: The South African Experience in an International and Comparative Perspective (2015) 61. 220 M Ssenyonjo The African Regional Human Rights System (2012) 59. 221 Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001) at 56. 222 Social and Economic Rights Action Centre (SERAC) & Another v Nigeria supra note 222 at 68.

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further workers’ socio economic rights.223 This has allowed trade unions to receive protection in

furthering the interests of their members through strikes and other demonstrations.224

The ACHRP has a responsibility to protect and uphold the rights of people.225 The ACHRP must

also undertake any function that is required of it by the government and the Assembly of Heads

of State.226 The ACHRP is entitled to perform any investigation including accepting

recommendations provided by the Secretary General and OAU.227 The African Commission has

been appointed to monitor member states compliance with the ACHRP through a reporting

procedure. The reporting procedure is established through the Articles of the African Charter.228

The ACHRP is tasked with gathering data relating to human rights and analyses reports

submitted by member states and Non Governmental Organisations (NGOs). The ACHRP is also

commissioned to investigate complaints and violations of the ACHRP that have been submitted

by member states and non-parties.229 The ACHRP will only consider a complaint if the member

state has exhausted its internal remedies or if the matter was unreasonably delayed by the

member state’s national courts.230 Even though the fundamental task of the ACHRP is to

promote the values enshrined in the Charter, there are various international human rights

standards which direct its functions such as the ESC, Universal Declaration of Human Rights,

the Charter of the United Nations and the Charter of the Organization of African Unity.231

3.5. CONCLUSION

The specific political and socio-economic battles that have plagued each country’s past has

necessitated the right to strike. This is illustrated in the paramount role organisations adopt in

their militancy against authoritarian control, which has culminated in democracy and the

223 A van Daele International Labour Rights and the Social Clause: Friends or Foes (2004) 332. 224 B Saul, D Kinley & J Mowbray The International Covenant on Economic, Social and Cultural Rights (2014) 494. 225 Article 45 of the African Charter. 226 Article 45(4) of the African Charter. 227 Article 46 of the African Charter. 228 Article 62 of the African Charter. 229 S Amadi ‘The African Charter on Human Rights: discovering its potential’ (2002) 3(1) ESR Review: Economic and Social Rights in South Africa 5. 230 P De Vos ‘A new beginning: the enforcement of social, economic and cultural rights under the African Charter on Human and People’s Rights’ (2004) 8(1) LDD 11-12. 231 Article 60 of the African Charter.

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enforcement of worker rights.232 Although strike action inflicts economic and societal pains, it

initiates a healing process through the use of international labour organisations, which have been

discussed above, that sees the relationship between the workforce and the state being

reconciled.233

The right to strike has been acknowledged as fundamental to the pursuit of employees’ rights.234

Therefore, it follows that the right to strike should not be understated or devalued as it has been a

significant contributing factor to the attainment of workers’ rights both nationally and

internationally.235

The next chapter, Chapter Four, will deal with the entrenchment of fundamental labour rights.

232 B Hepple ‘The right to strike in an International context’ available at https://www.law.utoronto.ca/documents /conferences2/StrikeSymposium09_Hepple.pdf., accessed on 15 September 2015. 233 W P Visser A Racially Divided Class: Strikes in South Africa, 1973-2004 (2007) 1. 234 J Servais International Labour Law (2011) 122. 235 W P Visser ‘“To Fight the Battle of the Workers”: The emergence of pro-strike publications in the early twentieth century South Africa’ (2004) 49(3) International Review of Social History 402.

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CHAPTER FOUR

THE ENTRENCHMENT OF FUNDAMENTAL LABOUR RIGHTS UNDER THE

LABOUR RELATIONS ACT 66 OF 1995

4.1. INTRODUCTION

The most significant implication of South Africa’s transition from apartheid to democracy was

its transformation within the labour market. Democracy in the country essentially entailed the

entrenchment of worker rights in the Constitution of the Republic of South Africa, 1996

(hereinafter referred to as the Constitution), the pursuance of workplace democracy through the

restructuring of laws and the enforcement of affirmative action. Labour relations in a

democratised society now faced the challenges of redressing the injustices of the past by

harmonising the employment relationship to obtain peace in the workplace which would

eventually lead to greater productivity.1

In1994 the democratic government hastily instructed a drafting committee which comprised of

attorneys who were integral to the liberation movement, representatives of prominent employers

as well as international experts. The committee was tasked with the drafting of labour legislation

which would instill much needed stability and reformation to an area that was characterised by

uncertainty and inequality.2 The culmination of protracted negotiations between government,

employers and employees saw the formation of the most significant labour legislative

framework, the Labour Relations Act 66 of 1995 (hereinafter referred to as LRA), which is the

foundation of current labour relations.3

This chapter will firstly discuss the role of the LRA within employment relations. The discussion

will include the aim of the LRA which is to transform the relationship between employees and

1 G M Ferrira ‘Developments in labour relations in South Africa: Ten years of democracy (1994-2004)’ (2005) 24(2) Politeia 199. 2 P Benjamin ‘Assessing South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA)’ (2013) 4. 3 H Bhorat, C van der Westhuizen & S Goga ‘Analysing Wage Formation in the South African Labour Market: The Role of Bargaining Councils’ (2007) 9.

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their employers by moving away from dissention to harmony and co-operation.4 The LRA does

this by enforcing a dispute resolution system aimed at resolving conflict through a framework

that seeks to benefit both parties.5 The chapter will then go on to discuss the entrenchment of

trade union rights. The enforcement of rights within the LRA pertaining to trade unions and their

representatives is pertinent as these rights lead to consistent interaction between employers and

their workers, thereby allowing any concerns or issues to be properly communicated so that

amicable consensus can be obtained.6 The chapter will then discuss the role of collective

bargaining within the dispute resolution framework of the LRA and its pivotal role in resolving

conflict which is necessary to prevent the dispute from escalating to strike action.7 Lastly, the

chapter will elaborate on the entrenchment of the right to strike and the protection afforded to

strikes which fall within the definition of ‘strike’ enshrined in the LRA.8

4.2 THE ROLE OF THE LABOUR RELATIONS ACT (LRA)

The promulgation of the LRA was a significant milestone within labour relations for two

paramount reasons. Firstly, the LRA afforded almost all public servants who were once excluded

from previous amendments of the current LRA with bargaining power rights. It changed

industrial councils to become bargaining councils. Even though the LRA did not impose a duty

on employers and employees to engage in bargaining, it did codify and fortify the rights of

unions within the labour market.9

Secondly, the LRA entrenches the protection of strike action.10 The right to strike is tantamount

to the protection of lock-outs which is an employer’s right to recourse. However, for the

purposes of this chapter emphasis will only be placed on the right to strike in light of the topic of

this thesis. The right to strike is endorsed in Chapter Five of the LRA. According to the LRA,

4 R Raju & C Stilwell ‘From adversarialism to cooperation: Key implications of the new South African labour dispensation for the library and information sector’ (2007) 25(1) Mousaison 6. 5 H Bendeman ‘An analysis of the problems of the labour dispute resolution system in South Africa’ (2006) 6(1) Africa Journal of Conflict Resolution 81. 6 P Le Roux & S Hanif ‘Majoritarianism in the context of organizational rights: employment law’ (2015) 15(10) Without Prejudice 32. 7 J Ibietan ‘Collective bargaining and conflict resolution in Nigeria’s public sector’ (2013) 21(2) Ife Psychologia: An International Journal 221. 8 A van Heerden ‘Protected strikes-getting the balance right: labour law’ (2011) 11(9) Without Prejudice 67. 9 J Maree ‘Trends in the South African collective bargaining system in comparative perspective’ (2011) 35(1) SAJLR 13. 10 S Godfrey … et al Collective Bargaining in South Africa: Past, Present and Future? (2010) 90.

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strikes are afforded full protection if the act constitutes a strike under the definition of the LRA.11

The protection of striking employees is vital as the old Labour Relations Act of 1956 and its

subsequent amendments did not protect employees against dismissal.12

This effectively meant that even though employees were given a framework for how strike action

should be implemented, it did not enunciate strike action as a right. Therefore, employers could

have still held employees liable on breach of their employment contract.13 This was a grave

injustice as not only did employers have the use of lock-outs as their right of recourse, but also

employers had control over the exercise of strike action. Hence, the LRA sought to redress this

inequality by enshrining strike action as a right.14

There are four fundamental objectives which the LRA seeks to achieve, namely; to promote

economic growth, instill justice within society, create harmony in the once turbulent labour

market and inculcate the concept of democracy within the workplace.15 There are a number of

cases that portray how the courts have dealt with the enforcement of these objectives. For

illustrative purposes the following cases will be discussed at this point in the chapter. It is

essential to take cognisance of the objectives of the LRA in that they have firstly been enacted in

the light of international obligations implemented through the International Labour Organisation

(ILO) and its conventions. Secondly, it has been enacted to give effect to the labour rights

enshrined in the Constitution.16 The objectives of the LRA are therefore synonymous with the

objectives of the ILO and the Constitution. Therefore, the interpretation of the LRA’s objectives

must be in conformity with international laws and the Constitution.17 This precedent was

affirmed in the Ceramic Industries Ltd t/a Betta Sanitay Ware & another v NCBAWU & others,18

11 s 213. 12 H Suchard ‘Labour relations in South Africa: retrospective and prospective’ (1982) 12(2) Africa Insight 92. 13 C Tanner ‘Making amends: The new look LRA’ (1999) 8(2) Indicator SA 89. 14 G Gall ‘Trade unions and the ANC in the ‘New’ South Africa’ (1997) 24(72) Review of African Political Economy 208. 15 The LRA; s 1, P Benjamin, H Bhorat & H Cheadle ‘The cost of “doing business” and labour regulation: The case of South Africa’ (2010) 149(1) International Labour Review 74. 16 P A Grobler, M Kirsten & S Warnich ‘Building capacity for their members: What employers’ organizations in South Africa need to know’ (2005) 36(2) S.Afri.J.Bus.Manage 39. 17 P H Reyneke Labour practices in South Africa and Korea: A comparative study against international labour organization standards (unpublished MBA thesis, University of Johannesburg, 2009) 84. 18 Ceramic Industries Ltd t/a Betta Sanitary Ware & another v NCBAWU & others [1997] 6 BLLR 697 (LAC).

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where the court stated that the objectives of the LRA must be interpreted in conformity with

international law and the Constitution.19

It must be understood that the Constitution was enacted to redress the injustices of the past not

only within society but also within the field of labour. It is for this reason that the LRA has the

dual function of inculcating transformation in the workplace as well as in society at large. In

Foodgro (A division of Leisurenet Ltd) v Keil,20 the court explained the objective of ‘economic

development’ by stating that this objective must be advanced:

“in conjunction with other goals, namely those of social justice, labour peace and the democratization of the workplace. This is to be done by fulfilling the primary objects of the Act: giving effect to fundamental rights and International Labour Organization (ILO) obligations, providing a proper framework for collective bargaining and the formulation of industrial policy; and promoting orderly collective bargaining, employee participation in workplace decision-making and effective resolution of labour disputes”.21

The Labour Appeal Court (LAC) in this case conveyed a pertinent point in that the promotion of

economic development cannot be achieved in isolation, but rather it is inter-linked with the

concept of justice and unity within society.22 The court acknowledges that unjust laws that

govern society negatively impact on labour relations. In addition, labour peace essentially entails

the elimination of strife which takes the form of strikes and lock-outs.23 By engaging in

collective bargaining, parties would be able to resolve disputes amicably and speedily rather than

resorting to strikes and lock-outs.24 This in turn would result in a decrease of work days lost and

greater productivity.25 Lastly, instilling equality in the workplace ensures that all employees are

treated the same, therefore, employees would be able to work in an environment that is free from

animosity. Thus, the morale of the workplace would be significantly improved.26

One of the objectives that the LRA seeks to promote is successful dispute resolution which is

achieved through collective bargaining aimed at enhancing co-operative decision making

19 Ceramic Industries Ltd t/a Betta Sanitary Ware supra note 18 at 70. 20 Foodgro (A division of Leisurenet Ltd) v Keil [1999] 9 BLLR 875 (LAC). 21 Foodgro (A division of Leisurenet Ltd) v Keil supra note 20 at 11. 22 A Desai & A Habib ‘Labour relations in transition: The rise of corporatism in South Africa’s automobile industry’ (1997) 35(3) The Journal of Modern African Studies 495. 23 Bruniquel & Associates ‘September to October 2011 Workbook’ 2011 Labour Law Update 30. 24 Pep Stores (Pty) Ltd v Laka No & others (1998) 19 ILJ 1534 (LC). 25 M Daemane ‘Human Resources Management (HRM) and trade unions compatibility: ‘Soft-hard’ model digestion for human capacity building and sustainable productivity at workplace’ (2014) 5(7) JETEMS 122. 26 S Harvey ‘Labour brokers and workers’ rights: Can they co-exist in South Africa?’ (2011) 128(1) SALJ 104.

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between employers and employees.27 It does this through the establishment of workplace forums

and consultation with the employee. Furthermore, it has established a simple process for dispute

resolution that has been enforced through conciliation and arbitration and through the use of

independent bodies designed to resolve conflict.28 The courts have addressed the issue of dispute

resolution by emphasising the significance of collective bargaining which is evident in the

following cases.

In North East Cape Forests v SAAPAWU & others (2),29 the court held that where a dispute

arises pertaining to the objectives of the LRA and a matter of contractual terms and conditions,

the objectives of the LRA should take precedence over the contract. Collective bargaining and

the right to strike should not be subordinate to the principles that regulate contract law.30 The

court in this case illustrates that the fulfillment of the objectives of the LRA should be regarded

with the greatest importance and that the right to strike action and collective bargaining should

be viewed as paramount in giving effect to the objectives of the LRA.31

The objectives of the LRA essentially signify that this legislation is deemed to be the foundation

of dispute resolution. This was manifest in NAPTOSA & others v Minister of Education, Western

Cape & others,32 where the court held that in the event of a grievance an employee is compelled

to first seek resolution under the procedure prescribed by the LRA. If, however, no remedy is

found through the LRA’s dispute resolution process then the LRA could potentially be held

liable for not providing sufficient protection to rights enshrined in the constitution.33 The court

sought to highlight through case law that the objectives of the LRA are a pertinent characteristic

of the legislation itself. The LRA not only entrenches successful bargaining as a primary

objective in an attempt to prevent industrial strife, but it also provides a comprehensive

framework for resolving conflict.34

27 G Ferreira ‘Collective Bargaining and the public sector’ (2008) 43(2.1) Journal of Public Administration 194. 28 F Howitz, H Jain & L Mbabane ‘Trade union consultation by employers under employment equity legislation’ (2005) 29(1) SAJLR 5. 29 North East Cape Forests v SAAPAWU & others (2) [1997] 6 BLLR 711 (LAC). 30 North East Cape Forests v SAAPAWU & others (2) supra note 29 at 719, FAWU v General Food Industries Ltd [2002] 10 BLLR 950 (LC) at 12. 31 H Cheadle ‘Collective bargaining and the LRA’ (2005) 9(2) LDD 147. 32 NAPTOSA & others v Minister of Education, Western Cape & others (2001) 22 ILJ 889 (C). 33 NAPTOSA & others supra note 32 at 896. 34 P Molusi ‘The constitutional duty to engage in collective bargaining: notes’ (2010) 31(1) Obiter 161.

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The court’s enforcement of the LRA’s dispute resolution framework is further illustrated in

Mackay v ABSA Group &another,35 where the court stated that,

“all disputes arising from the employer-employee relationship must be effectively resolved. Such disputes are resolved through conciliation, arbitration and adjudication, and those of a collective nature through collective bargaining. It is clear that it could never have been intended that some disputes arising out of the employer-employee relationship are incapable of resolution in terms of the Act”.36

By handing down this judgment the court highlighted that the LRA’s dispute resolution

framework is deemed effective in dealing with matters of conflict and that the LRA has a duty to

protect the rights of employees.37 Furthermore, the protection of employees’ rights is enforced

through the process of collective bargaining within the dispute resolution system. However, even

though the courts have taken a stringent view point on the interpretation and enforcement of the

LRA’s purpose and objectives, it does not involve itself within the actual bargaining process.38

In National Police Services Union & others v National Negotiating Forum & others,39 the court

pointed out that the LRA does not place any duty on either the employer or the employee to

engage in the bargaining process. The courts are not given authority to determine or influence the

result of the bargaining process. The outcome of such negotiations is entirely dependent on the

parties themselves.40 This ruling essentially portrays that both parties to the bargaining process

must be given equal power which instills democracy within labour relations.41 Industrial

democracy seeks to undo the unilateral power that existed with employers over their employees

which has been enforced through legislation for centuries. The LRA therefore seeks to empower

the employee.42

Ultimately, the promulgation of the LRA was to revolutionise labour law and in doing so give

effect to s 23 of the Constitution which enshrines labour rights for all employees.43 Even more

significantly, the LRA seeks to enforce s 23(2) that endorses trade union rights and the right to 35 Mackay v ABSA Group & another [1999] 12 BLLR 1317 (LC). 36 Mackay v ABSA Group & another supra note 35 at 15. 37 C Bosch ‘Bent out of shape?: critically assessing the application of the right to fair labour practices in developing South African labour law’ (2008) 19(3) Stell LR 387. 38 J M Brown ‘Enforcement difficulties in the public and private sectors’ (2007) 11 LDD 104. 39 National Police Services Union & others v National Negotiating Forum & others (1999) 20 ILJ 1081 (LC). 40 National Police Services Union supra note 39 at 52. 41 D de Villiers ‘Interest based bargaining: The role of the trust relationship between employer and employee’ (1999) 2(3) SAJEMS 443. 42 D du Toit ‘Industrial democracy in South Africa’s transition’ (1997) 1 LDD 42. 43 M Olivier ‘Fundamental rights and labour law: Some recent developments (part 2)’ (1996) 345 De Rebus 668.

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strike. Therefore, the objectives as stated by the LRA and the constitutionalisation of labour

rights further emphasises the mandate that should be carried out.44

4.3. THE ENDORSEMENT OF TRADE UNION RIGHTS AND COLLECTIVE

BARGAINING

4.3.1 THE ENDORSEMENT OF TRADE UNION RIGHTS

The transitional phase of South Africa to democracy redefined the focal point of trade unions in

that prior to democratisation, unions purposed themselves in the fight for liberation. However,

the post-apartheid era saw unions engaging in policy formation with government.45 The

endorsement of trade union rights46 within the Constitution47 as well as the LRA essentially

provided for stronger protection of the rights of workers. In order to understand how trade unions

protect and promote employees’ rights it is firstly necessary to comprehend what constitutes a

trade union and how it undertakes to protect employees.48

A trade union can be described as the ‘in-between’ body that bridges the gap between an

employer and an employee.49 Essentially the role of a trade union is to safeguard the existing

rights of its members and also improve and enhance these rights,50 and all employees are entitled

to join and participate in trade union activities.51 The fundamental function of a trade union is to

engage in the process of collective bargaining with employers on behalf of their members as well

as provide representation for matters concerning disciplinary proceedings or on matters

pertaining to grievances.52

44 R Bernikow ‘Ten years of the CCMA- An assessment for labour’ (2007) 11 LDD 15. 45 M Uys ‘Factors influencing the future existence of trade unions in South Africa’ (unpublished LLM thesis, University of the North West, 2011) 7. 46 For the purpose of this chapter the terms ‘trade union rights’ and ‘organizational rights’ will be used synonymously. 47 s 23 (2). 48 W A Attley ‘The role of trade unions’ (1987) 76(303) Studies: An Irish Quarterly Review 296. 49 K R Sundar ‘Trade unions and civil society: Issues and strategies’ (2007) 42(4) International Journal of Industrial Relations 713-714. 50 A A Landman ‘The registration of trade unions-the divide narrows’ (1997) 18 ILJ 1186. 51Independent Municipal and Allied Trade Union and others v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC), Keshwar v SANCA (1991) 12 ILJ 816, Wilson v UK [2002] 35 ECRR 523. 52 J Grogan Collective Labour Law (2010) 35.

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The role of a trade union is essentially described in Amalgamated Engineering v Minister of

Labour53 where the court stated that a “trade union concerned should act as the spokesman of its

members whenever a dispute arises between employers and employees”.54 A trade union is

confronted with the challenge to meet the requirements of the majority members’ needs, to

obtain all “sources of power at its disposal and to achieve its goals by implementing strategies”.55

Therefore, trade unions are essential to the furtherance of concepts of equality and democracy in

the workplace as they promote the interests of employees by ensuring that employees are placed

in an equal position to their employers.56

It is therefore imperative that trade unions are given adequate protection by legislation.57 It is for

this reason that the LRA prescribes the steps which unions may follow to acquire organisational

rights.58 The LRA prescribes the requirements for the registration of trade unions and its

regulation. The effect of the registration of a trade union establishes the union as a body

corporate. Hence, rights and obligations are conferred upon the trade union.59 In Vidar Rubber

Products (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (CCMA) &

others,60 the court held that mere compliance with the requirements stipulated in s 97(1) for the

registration of unions or employers' organisations does not in itself bring a union within the

definition of a trade union. The ‘purpose’ of that given union is an additional element which

would have to be satisfied to determine whether the union does constitute a trade union under the

definition of the LRA.61 It must be noted that the purpose of a trade union is essentially to protect

and promote the interests of its members, thus only employees may become members of trade

53 Amalgamated Engineering v Minister of Labour 1949 (4) SA 908 (A). 54 Amalgamated Engineering supra note 53 at 912. 55 M Finnemore & R van Rensburg Contemporary Labour Relations 2nded (2002) 139. 56 T Chetvernina ‘Trade unions in transitional Russia-peculiarities, current status and new challenges’ (2009) 12(3) Journal for Labour and Social Affairs in Eastern Europe 408. 57 N Botha & C Mischke ‘A new labour dispensation for South Africa’ (1997) 41(1) Journal of African Law 136. 58 s 21. 59 s 97 (1). 60 Vidar Rubber Products (Pty) Ltd v CCMA & others [1998] 6 BLLR 634 (LC). 61 Vidar Rubber Products (Pty) Ltd supra note 60 at 60, National Employers Forum v Minister of Labour & others (2003) 24 ILJ 954 (LC), Workers Union of SA v Crouse No & Another (2005) 26 ILJ 1723 (LC).

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unions.62 The protection of its members can only be achieved if a trade union is a separate body

corporate.63

The LRA further stipulates that a trade union must be an independent body which requires that a

union must not be within “the direct or indirect control of an employer or employer’s

organization” and that a union must be “free of any interference or influence of any kind from

any employer or employer’s organization”.64

The independence of a trade union is vital as it ensures that it operates as a body that is free

from any bias or undue influence. The best interests of employees can only be appropriately

obtained if a union can acquire the trust, cooperation and dependence of its members.65 This will

only come about if members are convinced that their representatives will always act on their

behalf without prejudicing their interests. The LRA attempts to assist in acquiring the trust of

members by ensuring that a trade union does not undertake its duties for its own benefit.66

The purpose of a trade union is enshrined in its constitution; therefore the LRA seeks to regulate

the constitutions of trade unions so as to ensure that they engage in ethical and fair practices.67

The LRA does not require a union to strictly adhere to its constitution unless the unions’

constitution includes requirements under s 65(2)(b) of the LRA, which stipulate the requirements

for a protected strike.68 The LRA specifies that a trade union may not be purposed to gain a

benefit and that it may decide on the criteria for membership to that particular union.

Furthermore, a union may determine what payments are to be made by members, how such

payments are to be determined as well as other payments required from members.69 In NEWU v

Mtshali & another,70 the court dealt with s 95(5)(a), (b) & (f) of the LRA. The particular union had

decided to amend its constitution which entailed that under this proposed amendment members

62 NEWU v Mtshali & Another (2000) 21 ILJ 1166, Midland Chamber of Industries Staff Committee v Midland Chamber of Industries [1995] 5 BLLR 74 (IC). 63 M E Manamela ‘The role of the registrar of labour relations in the registration of trade unions’ (2006) 18 SA Merc LJ 453. 64 s 95(2)(a) - (b). 65 M Bennett ‘The super federation: independence unionism comes of age factions and fractions in the post-Wiehahn era’ (1985) 3(2) Indicator SA 1. 66 A Adigun ‘The implications of social democracy on industrial relations in Nigeria’ (2014) 5(1) JETEMS 29. 67 s 95(5)(a) - (w). 68 KZN Furniture Manufacturer’s Association v National Union of Furniture & Allied Workers of South Africa [1996] 8 BLLR 964 (N). 69 s 95(5)(a), (b) & (f). 70 NEWU v Mtshali & another [2000] 3 BLLR 337 (LC).

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would be compelled to make payments of disbursement costs and fees.71 The proposed

amendment conflicted with s 95(5)(a) and (f) as the payment of these fees was more than the

required payment by members and such proceeds would thus be a beneficial gain to the union.

The court upheld the decision taken by the registrar.72 In Mtshali supra a further proposed

amendment was made to the union’s constitution which allowed job seekers or applicants’

membership into that given union. The court upheld the decision of the registrar who denied the

registration of that amendment as it conflicted with the LRA’S definition of an employee.73

Even though the LRA prescribes mandatory steps for the registration of trade unions,74 union

representatives may still act on behalf of members in court proceeding and on matters taken to

the CCMA where such unions have not been registered.75 The LRA confers rights upon a trade

union that take effect immediately when a trade union is registered. This is pertinent as the LRA

stipulates that members of a union cannot be held liable for any obligations or liabilities incurred

by the trade union nor would any of its members, office-bearers, officials as well as union

officials be held personally accountable for losses incurred to any given person in the pursuance

of conducting union functions.76 However, this protection is only afforded if such an act or

omission was performed in good faith.77 The requirement that protection only be given to bone

fide acts emphasises that unions may not engage in criminal activity in the pursuit of their

members’ interests as they would be held liable for any damages that ensue as a result of their

conduct.78 Although the registration of a union essentially affords unions rights, this however

does not mean that because it is a corporate body that they are a law unto themselves. This would

vitiate the function of a union. The acquisition of organisational rights is enshrined to assist in

71 NEWU v Mtshali & another supra note 70 at 20. 72 NEWU v Mtshali & another supra note 70 at 20. 73 NEWU v Mtshali & another supra note 70 at 18-19. 74 s 96(1) – (7). 75 Marble Hall Spar v SACWU& others [1997] 10 BLLR 1311 (LC), Vidar Rubber Products (Pty) Ltd v CCMA & others [1998] 6 BLLR 634 (LC), Secunda Supermarket CC t/a Secunda Spar & another v Dreyer NO & others [1998] 10 BLLR 1062 (LC). 76 s 97(2) & (3). 77 SA Transport & Allied Workers Union v Garvis (2012) 33 ILJ 1593 (CC), Food & Allied Workers Union v Ngcobo (2013) 34 ILJ 1383 (SCA), Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union [2002] 1 BLLR 84 (LC), Manguang Local Municipality v SA Municipality Workers Union (2003) 24 ILJ 405 (LC), NUM v Libanon Gold Mining Co (1988) 9 ILJ 832 (IC), SAWU v Cape Lime (1988) 9 ILJ 441 (IC), Lomati Mill Baberton (A Division of Sapp Timber Industries) v Paper Printing Wood & Allied Workes Union (1997) 18 ILJ 178 (LC). 78 Adcock Ingram Critical Care v CCMA & others [2001] 9 BLLR 979 (LAC) at 15.

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the furtherance of a union’s functions. Therefore, the LRA prescribes further mechanisms for the

acquisition of trade union rights.

Organisational rights can also be acquired through the conclusion of a collective agreement

which would encompass the organisational rights permitted to a union as well as the limitations

and exercise of such rights.79 The acquisition of organisational rights is imperative as it allows an

employer to recognise and acknowledge the union as a bargaining agent during wage

negotiations.80 Minority unions who do not have sufficient representivity of the workforce are

not recognised by the employer as bargaining agents during negotiations,81 as was illustrated in

National Union of Metalworkers of SA & others v Bader Bop (Pty) Ltd & another.82 In Bader

Bop supra the General Industrial Workers Union of SA represented the majority of employees

employed by Bader Bop.83 Thus, the union was entitled to all the rights accrued to a majority

union in terms of part A, chapter III of the LRA. The National Union of Metalworkers of South

Africa (NUMSA) who only represented 26% of Bader Bop’s workforce approached Bader Bop

in an attempt to persuade it to entitle the union with organisational rights.84 The employer was

only willing to afford NUMSA access to the business premises in terms of s 12 of the LRA and

stop order facilities in terms of s 13 of the LRA. However, Bader Bop was unwilling to recognise

NUMSA as a bargaining agent and therefore the representatives of NUMSA could not bargain

with the employer on behalf of its members.85 The dispute pertaining to organisational rights was

referred to the CCMA for conciliation; however, the issue was not resolved. NUMSA then

79 D Bosch, E Molahlehi & W Everett The Conciliation and Arbitration Handbook: A Comprehensive Guide to Labour Dispute Resolution Procedure (2004) 126, Transnet Soc Ltd v National Transport Movement [2014] 1 BLLR 98 (LC), Bravo Group Sleep Products (Pty) Ltd v Chemical Energy Paper Printing Wood & Allied Workers Union (2009) 30 ILJ 1090 (LC), Fakude v Kwikot (Pty) Ltd (2013) 34 ILJ 2024 (LC), Mzeku v Volkswagen SA (Pty) Ltd [2001] 8 BLLR 857, Aunde South Africa (Pty) Ltd v NUMSA [201]1 10 BLLR 945 (LAC). 80 Independent Municipal and Allied Trade Union and others v Rustenburg Transitional Council (2000) vol ILJ 377 (LC), Wilson v UK [2002] 35 EHRR 523, Keshwar v SANCA (1991) 12 ILJ 816, National Police Services Union & others v National Negotiating Forum & others (1999) 20 ILJ 1081 (LC) 81 South African Post Office Ltd v Commissioner Nowosenetz [2013] 2 BLLR 216 (LC), Chamber of Mines of SA v Association of Mineworkers & Construction Union (2014) 35 ILJ 1243 (LC), Kem-Lin Fashions CC v Brunton (2001) 22 ILJ 109 (LAC), Glass, Cement and Soil Industries Workers’ Union Case No. 2303 (Turley) (2003), United Association of SA v BHP Billiton Energy Coal SA Ltd (2013) 34 ILJ 2118 (LC), POPCRU v LEDWABA [2013] 11 BLLR 1137 (LC), Mutual & Federal Insurance Co Ltd v Banking Insurance Finance & Assurance Workers Union (1996) 17 ILJ 241 (AD). 82 National Union of Metalworkers of SA & others v Bader Bop (Pty) Ltd & another 2003 (3) SA 513 (CC), (2003) 24 ILJ 305 (CC). 83 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 306D-E. 84 National Union of Metalworkers of SA & others v Bader Bop supra note 82at 306G. 85 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 306H.

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informed the employer that it intended embarking on a strike in accordance to chapter IV of the

LRA. The employer contended that the union was not able to strike over organisational rights

and thus approached the LC where the court ruled that the employees were entitled to strike over

organisational rights.86 On appeal at the LAC, the court overruled the decision of the LC and

interdicted the strike. The union then approached the Constitutional Court (CC) on the basis that

the provisions of the LRA infringed on their constitutional right to engage in strike action.87

O’Regan J who represented the majority decision of which Chaskalson CJ, Langa DCJ,

Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J and Yacoob J concurred in the

judgment of O'Regan J. The CC analysed the applicant’s argument in light of the purpose of the

LRA as enshrined in s 1 of the LRA.88 Firstly, the LRA is required to give effect to the rights

enshrined in the Constitution. Secondly, it has to give effect to the international conventions

endorsed by the International Labour Organization. Thirdly, the LRA is required to enforce a

framework for the resolution of disputes through the mechanism of collective bargaining.

Fourthly, the LRA seeks to instill the concept of orderly collective bargaining which includes the

participation of employees in working together with the employer to resolve disputes.89 O’Regan

J stated that in interpreting the Bill of Rights the court is required to consider international law

and foreign law as well as promote values that are based on human dignity.90

The CC firstly considered that the international conventions adopted by the ILO91 were pertinent

to the issue before the court. O’Regan J averred that Article 2 of the Convention 87 of 1948

provides that both workers and employers are entitled to establish and join organisations without

any authorisation or distinction on any terms.92 The Committee of Experts on the Application of

Conventions and Recommendations and the Freedom of Association Committee of the

Governing Body of the ILO have affirmed that Article 2 promotes the significance of the

fundamental right of freedom of association afforded to all workers and their employers to join

86 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 306H-I. 87 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 306J. 88 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 307A. 89 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 307G-H. 90 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 307I. 91 Freedom of Association and Protection of the Right to Organize Convention 87 of 1948 (hereinafter referred to as the Convention 87 of 1948) and the Right to Organize and Collective Bargaining Convention 98 of 1949 (hereinafter referred to as the Convention 98 of 1949). 92 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 308A.

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and participate in any organisation of their choice.93 The CC considered that if there is a broader

interpretation of the LRA that would not limit fundamental rights then that interpretation should

be followed. The LRA in terms of part A of chapter III evidently entrenches organisational rights

on unions who are either sufficiently representative94 or majority unions.95 These rights are

enforceable through mechanisms provided for through conciliation which is then followed by

arbitration. There are two options available to employees and employers if conciliation is

unsuccessful, either arbitration or industrial action.96 O’Regan J stated that the LRA does not

include any provision which seeks to exclude unions who do not meet the threshold requirements

to receive organisational rights from utilising mechanisms such as collective bargaining and

strike action to pressurise the employer to afford the union organisational rights.97 Organisational

rights which pertain to the recognition of shop stewards, stop-order facilities and access to the

workplace are ‘matters of mutual interest’ to both employees and the employers and as such are

capable of forming the issue in dispute for purposes of collective bargaining and industrial

action.98

Furthermore, O’Regan J elucidated that s 20 of the LRA provided that there was nothing in Part

A which prevents parties from concluding collective agreements that would regulate

organisational rights. The CC went on to further affirm that the intention of international bodies

was that minority unions should be provided the equivalent rights of majority unions.99 The

conclusion of collective agreements has been further endorsed in subsequent cases.100 The CC

thus upheld the appeal by affording minority unions the right to strike to obtain organisational

rights.101

Another mechanism for acquiring organisational rights is where the given employer and the

union is party to a bargaining or statutory council. The acquisition of organisational rights

through this mechanism takes precedence over a collective agreement which may be concluded

93 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 308B. 94 The LRA; ss 12, 13 & 15. 95 The LRA; ss 14 & 16. 96 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 308G. 97 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 308H. 98 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 308I. 99 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 309A. 100 UASA- The Union v BHP Billiton Energy Coal: South Africa (JS 1082/09) [2012] ZALCJHB 97, [2013] 1 BLLR 82 (LC), United Association of South Africa- The Union v Impala Platinum Ltd (Case no: JS 1082/09), unreported. 101 National Union of Metalworkers of SA & others v Bader Bop supra note 82 at 309G.

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between the employer and union that would give the union complete exclusivity. These rights

basically provide an automatic access to workplaces as well as the right to stop orders within the

registered sphere of the given council, regardless of whether such a union is representative

within the workplace.102 A union’s representivity within the workplace is pertinent as the

endorsement of union rights is enshrined according to a union’s representivity in the given

workplace.103

The term ‘workplace’ is significant in that union officials are entitled to enter the workplace

when it is reasonable to do so in order to recruit members and fulfill their obligations.104 The

attainment of organisational rights for all trade unions is fundamental to the concept of collective

bargaining as it is through the process of collective bargaining that unions engage in negotiations

regarding issues pertaining to the employment relationship.105

4.3.2. THE RIGHT TO COLLECTIVE BARGAINING

In order to acknowledge the purpose and aims of collective bargaining, it is firstly imperative to

understand the nature of collective bargaining. Collective bargaining can be described as “the

joint determination by employees and employers of the problem of the employment

relationship”.106 There are also other definitions which broaden our understanding of the term.107

There are three significant characteristics that can be extracted from these definitions. Firstly,

collective bargaining involves the collaboration of trade unions and an employer or his

association. The term ‘collective’ in itself signifies that bargaining cannot be achieved 102 H Landis & L Grosset Employment and the Law: A Practical Guide for the Workplace (2003) 291. 103 ch 3. 104 s 12.The term workplace is defined according to the LRA in s 12 as: “the place or places where employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reason of their size, function or organization, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation”. 105 C Tshoose ‘Determining the threshold for organizational rights: The legal quagmire facing minority unions resolved- South African Post Office v Commissioner Nowosenetz No [2013] 2 BLLR 216 (LC)’ (2013) 34(3) Obiter 600. 106 T J Benjamin & W Fred Labour Relations Law 2nd ed (1975) 3. 107 The Wiehahn Commission Report Part v par 2.6.2. has described collective bargaining as “a process of decision-making between employers and trade unions with the purpose of aiming at an agreed set of rules governing the substantive and procedural terms of the relationship between them and all aspects of issues arising out of the employment situation." Collective bargaining has also been described as “all negotiations which takes place between an employer, a group of employers or one and more employers organization, on the one hand, and one or more workers’ organizations, on the other, for: a) determining working conditions and terms of employment: and /or b) regulating relations between employers and workers…” Article 2 of the ILO Collective Bargaining Convention No 154.

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unilaterally but that parties must voluntarily come together.108 Secondly, collective bargaining

refers to a process of negotiations.109 This is an essential point as the essence of collective

bargaining is defined by its attempt to resolve issues through discussion, dialogue and

compromise110 rather than resorting to a more militant approach through strikes and lock-outs.

Thirdly, an agreement must be reached pertaining to the terms and conditions of the employment

relationship. At the end of successful collective bargaining, parties must conclude a collective

agreement that will become binding on the parties within the employment relationship.

Collective bargaining is dependent on the cooperation, trust, mutual aspirations and the

willingness to compromise within the employer-employee relationship.111 This point is further

illustrated in Macsteel (Pty) Ltd v NUMSA,112 where the court stated that:

“the LRA creates machinery which makes collective bargaining not only possible but compulsory. Its aim is to avoid if possible industrial strife and to maintain peace. Its operation is such that, if parties negotiate genuinely and in good faith, and their demands and offers are reasonable, settlement will be reached before disruption takes place…”.113

Therefore, it is submitted that the function of collective bargaining is to ensure that parties come

to an understanding about the issue and that the dispute will not necessitate industrial action or

lock-outs to reach a resolution. This would benefit both the employer and the employee in that

the employer would save on production time lost and the employee would not forfeit the right to

be paid. Collective bargaining has many objectives; however, the main objective is the

conclusion of collective agreements pertaining to conditions of employment as well as matters

relating to the mutual interest of both an employer and an employee.114

A collective agreement can be defined as a written agreement that is concluded by a trade union

and the employer or his/her representative which would stipulate the conceded conditions of

108 UAMAWU v Fodens (SA) (Pty) Ltd (1983) vol ILJ 212 (IC); East Rand Gold and Uranium Co Ltd v NUM (1989) vol ILJ 683 (LAC), SA Municipal Workers Union v SA Local Government Association (2010) 31 ILJ 2178 (LC), SA National Defence Union v Minister of Defence (2006) 27 ILJ 2276 (SCA), National Union of Mineworkers v Eskom Holdings Soc Ltd (2012) 33 ILJ 669 (LC), NUM v East Rand Gold and Uranium Co Ltd (1991) vol ILJ 221 (A). 109 ECCAWUSA & others v Southern Sun Hotels (Pty) Ltd (2000) 21 ILJ 1090 (LC). 110 Metal & Allied Workers Union v Hart Ltd (1985) 6 ILJ 478 (IC). 111 D Bolton, J J Bagram, L Witten, Y Mohamed, Z Zvobgo & M Khan ‘Explaining union participation: The effects of union commitment and demographic factors’ (2007) 31(1) SA Journal of Industrial Psychology 74. 112 Macsteel (Pty) Ltd v NUMSA (1990) 11 ILJ 995 (LAC). 113 Macsteel (Pty) Ltd v NUMSA supra note 112 at 1006B·E. 114 M Seweryński, ‘Representation of employees in collective bargaining within the firm’(2007) 11(3) Electronic Journal of Comparative Law available at http://www.ejcl.org/113/article113-2,pdf, accessed on 15 September 2015.

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employment or other matters pertaining to the mutual interest of employees and employers.115

The LRA provides that collective agreements are regarded as a contract between the parties and

that the general nature of a contract should apply by binding the parties to the collective

agreement.116 The LRA stipulates that a collective agreement may vary any employment contract

concluded by an employer and his employee. The effect would be binding on both parties.117

Furthermore, the LRA allows the terms of a collective agreement to override its general

provisions. Collective agreements may even limit rights enshrined in the constitution, such as the

right to strike.118 However, such a collective agreement must not be contrary to the interests of

society.

This point was reiterated in Mthimkhulu v CCMA & another119 where the court stated that it will

uphold “the products of collective bargaining save for the instance where the collective

bargaining agreement itself is contra boni mores and therefore void on that basis”.120 This case

elucidates that the contents of collective agreements are given a wide range of power to regulate

the employment relationship with merely one exception. Even though the Labour Court (LC)

would be willing to uphold a collective agreement, it does not intervene if there is a dispute

regarding its contents. This was evident in NPSU & others v The National Negotiating Forum &

others,121 where the court refused to make a decision regarding whether a particular trade union

had recognition as the matter pertained to the interpretation of the provisions of the collective

agreement and had to be decided through conciliation and arbitration proceedings.122

These have been pertinent improvements to the conventional process of collective bargaining as

employees have made significant progress by extending their power over the substance of

policies which relate to them.123 The LRA provides for three aspects of the right to collective

bargaining. Firstly, it promotes the freedom to engage in collective bargaining by establishing

115 s 213. 116 s 23. 117 s 23(3). 118 s 64(1)(a) provides that where a collective agreement that parties may not engage in strike action over a specific dispute, then strike action in such an instance will be unlawful. 119 Mthimkhulu v Commission for Conciliation, Mediation & Arbitration & another (1999) 20 ILJ 620 (LC). 120 Mthimkhulu v Commission for Conciliation, Mediation & Arbitration supra note 119 at 27. 121 NPSU & others v The National Negotiating Forum & others [1999] 4 BLLR 361 (LC). 122 NPSU & others supra note 121 at 55, see also ECCAWUSA & others v Southern Sun Hotels (Pty) Ltd supra. 123 G Adler ‘Engaging the state and capital: Labour and the deepening of democracy in South Africa’ (1998) 2 LDD 2.

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institutions for voluntary collective bargaining within sector level and the conclusion of

collective agreements. Secondly, the LRA ensures that parties have the right to utilise “collective

economic power” such as strikes and lock-outs. Thirdly, there is a positive right within the public

sector placed on parties to engage in collective bargaining. However, it does not impose a

positive duty within the private sector.124 These elements will be discussed in more detail within

dispute resolution.

4.4. THE FRAMEWORK FOR THE RESOLUTION OF INTEREST DISPUTES

The dispute resolution framework is essential to the right to strike as it is this framework which

seeks to remedy conflict before employees engage in strike action. The LRA has established

avenues for dispute resolution that are speedy and easily available in keeping with its primary

objective which is to resolve conflict.125 However, more significantly is that employees are

compelled to engage in a conciliatory phase which is a precondition for a protected strike as

enshrined in s 64(1) of the LRA.126 In light of the topic of this dissertation, the mechanisms for

dispute resolution will only be analysed in terms of interest disputes.

As discussed in Chapter Two, the old LRA did not expressly provide clarity on disputes of right

and disputes of interest which resulted in many inconsistencies on whether the matter had to be

referred for negotiation or whether the matter had to be decided by a court. The LRA which

regulates the present dispute resolution has resolved this issue by expressly stating those disputes

which should be referred to the CCMA for arbitration and to the LC for resolution.127 This is

highly pertinent as employees may only lawfully strike over disputes of interest.128 This was

further endorsed in MITUSA v Transnet (Pty) Ltd,129 where the court stated that the dispute

resolution system distinguishes between rights which are resolved through arbitration and those

which must be resolved through a display of power.130

124 H Cheadle ‘Collective bargaining and the LRA’ (2005) 9(2) LDD 148. 125 S Vettori ‘Enforcment of labour arbitration awards in South Africa’ (2013) 25 SA Merc LJ 245. 126 A Van Heerden ‘Protected strikes-getting the balance right: labour law’ (2011) 11(9) Without Prejudice 66. 127 s 65 (1). 128 J V Spielmans ‘Labour disputes on rights and on interests’ (1939) 29(2) The American Economic Review 301. 129 MITUSA v Transnet (Pty) Ltd (2009) 23 ILJ 2213 (LAC). 130 MITUSA v Transnet (Pty) Ltd supra note 129 at 106.

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The distinction of disputes is pertinent as there are different mechanisms for resolving rights and

interest disputes.131 The LRA prescribes two categories of disputes which may be referred to the

CCMA for arbitration, namely: disputes which relate to the terms of the LRA such as those

pertaining to the actual provisions of the LRA which are referred to as rights disputes132 and

disputes which relate to matters of mutual interest which are referred to as interest disputes.133 If

employees merely want to approach the CCMA for a demand on an increase in wages, they will

be instructed that the correct procedure would be to engage in collective bargaining and

industrial action.134 Similarly, if a dispute pertains to a rights dispute, such a dispute has to be

referred to the CCMA for arbitration to be resolved.135 It is therefore imperative that there is a

distinction made between rights and interest disputes as it determines which resolution technique

to adopt.136

Disputes of interest essentially pertain to the enactment or alteration of a new set of rules,137

whereas, disputes of rights pertain to the way in which existing rules and norms are interpreted

and applied.138 In all disputes, regardless of their nature, parties are required to engage in

conciliation before the matter can be referred for arbitration or the process of adjudication.139 It

must be noted that legislation does not impose a mandatory duty to bargain.140 Therefore, in such

cases, conciliation would be the first point of dispute resolution for interest disputes.141

Such a referral is made to the bargaining council within that given sector or if one does not exist,

the dispute is referred to the CCMA.142 If a matter is categorised as a dispute of interest and is

not resolved within the 30 day time frame stipulated by the LRA, then parties are entitled to

131 O V C Okene & C T Emejuru ‘The disputes of rights versus disputes of interests’ dichotomy in labour law: The case of Nigerian labour law’ (2015) 35 Journal of Law, Policy and Globalization 136. 132 s 133(1)(b), Sithole v Nogwaza NO (1999) 20 ILJ 2710 (LC), Gauteng Provinisale Administrasie v Scheepers (2000) 21 ILJ 1304 (LAC), SA Democratic Teachers Union v Minister of Education (2001) 22 ILJ 2325 (LC). 133 s 133(1)(a). 134 J Grogan Dismissal, Discrimination and Unfair Labour Practices 2nded (2007) 12. 135 BHT Water Treatment (a division of Afchem) (Pty) Ltd incorporating PWTSA v CCMA & others [2002] 2 BLLR 173 (LC), University of the Witswatersrand Johannesburg v Commissioner Hutchinson (2001) 22 ILJ 2496 (LC). 136 Sapeko Tea Estates (Pty) Ltd v Maake & others [2002] 10 BLLR 1004 (LC). 137 HOSPERSA v Northern Cape Provincial Administration (2000) 21 ILJ 1066 (LAC). 138 T Hanami & R Blanpain Industrial Conflict Resolution in Market Economics: A Study of Australia, The Federal Republic of Germany, Italy, Japan and the USA 2nded (1989) 8. 139 H Bhorat, K Pauw & L Mncube ‘Understanding the efficiency and effectiveness of dispute resolution’ 2007 DPRU 4. 140 M S Anstey, J Grogan & T Nycukaitobi Collective Bargaining in the Workplace (2011) 51. 141 J T Gibson South African Mercantile & Company Law (2003) 664. 142 C G Van Der Merwe & J E Du Plessis Introduction to the Law of South Africa (2004) 427.

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engage in industrial action or lock-out.143 There are specific interest disputes which have to be

referred to for arbitration if conciliation fails as industrial action cannot be an option because it

would be detrimental to the health and safety of the country.144 Additionally, there are disputes

such as rights disputes which must be referred to the CCMA for arbitration such as dismissals

and then there are other disputes which cannot be solved through arbitration but must be referred

to the LC for adjudication.145

4.5. THE ENTRENCHMENT AND REGULATION OF THE RIGHT TO STRIKE

Industrial action is protected by both the Constitution146 and the LRA. However, this protection

is not absolute, but rather the LRA places a number of conditions on its protection.147 The

entrenchment and regulation of industrial action which is specified by the LRA is enforced to

give effect to the spirit of the Constitution.148 The significance of the entrenchment of the right to

strike within the Constitution was emphasised in Chairperson of the Constitutional Assembly, ex

parte: In re Certification of the Constitution of the Republic of SA.149 The CC was called upon to

consider whether the proposed amendments to the new constitution complied with the

constitutional principles enshrined in the interim constitution.150 There were essentially two

objections. The first objection was that the inclusion of the right to strike within the new

constitution and the exclusion of an employer’s right to lock-out was in violation of the

constitutional principles II and XXVIII. The second objection raised was that the proposed

provision failed to identify and protect an employer’s right to participate in collective bargaining

in terms of the constitutional principle XXVIII.151 However, for purposes of illustrating only the

143 A Steenkamp & C Bosch ‘Labour dispute resolution under the 1995 LRA: Problems, pitfalls and potential’ (2012) Acta Juridica: Reinventing labour law: reflecting on the first 15 years of the Labour Relations Act and future challenges 122. 144 International Labour Office Grievance arbitration: A practical guide (1977) 5. 145 J V Du Plessis, M A Fouche & M W van Wyk A Practical Guide to Labour Law (2001) 323. 146 The Constitution; s 23. 147 DLA Cliffe Dekker Hofmeyer From recognition to strike: An overview of collective labour law 8. 148 ‘The right to strike: government perspective’ (2010) 35(11) IMIESA 9. 149 Chairperson of the Constitutional Assembly, ex parte: In re Certification of the Constitution of the Republic of SA, 1996 (4) SA 744 (CC), (1996) 17 ILJ 821 (CC), R v Smit 1995 1 SA 239 (K), Raad van Mynvakbondde v Die Kamer van Mynwese (1984) 5 ILJ 344 (IC). 150 Chairperson of the Constitutional Assembly, ex parte: In re Certification of the Constitution of the Republic of SA supra note 149 at 822A. 151 Chairperson of the Constitutional Assembly, ex parte: In re Certification of the Constitution of the Republic of SA supra note 149 at 839H-840A.

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superiority of the entrenchment of the right to strike, the discussion will only focus on the first

objection.

In terms of the first objection, it was argued that effective collective bargaining necessitates that

parties utilise economic power to counter each other. This economic power usually takes the

form of lock outs and strikes. Therefore, the right to lock out should be recognised in exactly the

same way that the right to strike is recognised and protected.152 This argument is based on the

standard of equality that the right to strike is the equivalent to the right to lock. Thus, both the

right to strike and the right to lock out should be included in the new constitution.153 In response

to the first objection, Chaskalson J held that this objection cannot be accepted. The CC arrived at

this decision by considering that collective bargaining is founded upon the acknowledgment that

employers have always possessed superior social and economic power over their workers.154

Collective bargaining is enforced to counteract the unequal power that has existed between

employer and employee.155 The unequal power apportioned to employers and employees was

highlighted in Bader Bop supra where O’Regan J emphasised that the right to strike is a critical

mechanism that allows employees to declare their bargaining power within employment

relationship.156 Furthermore, the right to strike is essential in furthering the dignity of employees

as it allows workers to assert their demands and not to be intimidated into unilateral conditions of

employment that are implemented by the employer.157 Workers are compelled to work together

in order to exert their power in the form of strikes which is an employee’s only weapon against

the employer. However, employers implement their power through an array of weapons such as

dismissal, the replacement of current labour with substituted labour, and the unilateral

introduction of new working conditions and terms as well as the right to lock out.158 The

significance of the right to strike as a fundamental right for employees has therefore resulted in

the right being more commonly enshrined within constitutions of various countries than the right

152 Chairperson of the Constitutional Assembly, ex parte: In re Certification of the Constitution of the Republic of SA supra note 149 at 840C-D. 153 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 840G-841A. 154 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 841A. 155 FAWU v Spekenham Supreme (1988) 9 ILJ 628 (IC), R v Smit 1995 (1) SA 239 (K), Raad van Mynvakbonde v Die Kamer van Mynwase (1984) 5 ILJ 344 (IC), ‘Freedom of Association and Collective Bargaining: General Survey by the Committee of Experts on the Application of Conventions and Recommendations’ Report 111 (4B), International Labour Conference 69 Session, Geneva (1983) para 200. 156 National Union of Metalworkers of SA & others v Bader Bop supra note 78 at 307B. 157 National Union of Metalworkers of SA & others v Bader Bop supra note 78 at 307C. 158 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 841A-C.

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to lock out. Thus, Chaskalson J concluded that the right to strike and the right to lock out are not

always equivalent in importance.159

The second objection was that the explicit inclusion of the right to strike without the explicit

inclusion to the right to lock out diminishes an employer’s right to collective bargaining and

affords less significance to the rights of employers than that which is afforded to employees.160

In light of the second argument, Chaskalson P enquired into the requirements of constitutional

principle XXVIII. The CC stated that in terms of this principle there was no request that the

proposed text include an express reference to the economic power available to either workers or

employers.161 The court further elaborated that when the right to collective bargaining is

recognised there is an implied inference to the right to utilise economic power against the parties

involved in collective bargaining.162 Furthermore, the inclusion of the right to engage in strikes

does not weaken an employer’s right to participate in collective bargaining and neither does it

diminish an employer’s right to effect lock out against employees.163

The third objection was that by including the right to strike within the Constitution infers that

legislation such as the LRA which protect lock outs would be unconstitutional and would

consequently be in violation of constitutional principle XXVIII.164 Chaskalson J held that this

objection was unfounded as the effect of the entrenchment of the right to lock out within the

LRA is merely to ensure that the right to lock out is regulated in accordance with constitutional

principles.165 Furthermore, the CC stated that the progression of the LRA will arise through the

expertise of the labour courts and labour legislation. The LRA and its provisions will always be

under constitutional inspection so that the rights of both employers and employees are always

upheld.166 Furthermore, in light of the third objection, it was argued that the failure to expressly

endorse the right to lock out in the new constitution is not in accordance with constitutional

principle II which requires that the new constitution entrenches and protects “all universally

159 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 841C. 160 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 840C-D. 161 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 840C-D. 162 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 840D-E. 163 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 840F. 164 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 841E. 165 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 841E-F. 166 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 841G.

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accepted fundamental rights, freedoms and civil liberties”.167 Chaskalson J responded to this

objection by stating that the right to lock out has not been accepted as a universally fundamental

right as none of the main international conventions entrenches the right to lock out. Only a few

countries have acknowledged the right to lock out within their constitutions. Thus, the CC

concluded that the exclusion of the right to lock out is not in violation of constitutional principle

II.168

The purpose of a strike in its most simple description is to coerce the employer to do or not to do

something.169 However, the implementation of strike action is not as simple, as this action

sometimes has devastating consequences that affect the economy and society, thus the regulation

of strikes is paramount to guard against abuse.170 However, it is the devastating consequences

that often compel the employer to accede to the demands made by workers.171 Therefore, it is

firstly imperative to understand what a strike is in order to identify those actions of employees

that are protected by the LRA.172

There are certain characteristics that can be extracted from the definition of a strike and if such

characteristics are not present then such a strike would not be afforded protection. Consequently,

the definition of a strike seeks to emphasise that there is a difference between lawful and

unlawful strikes.173 There are three essential elements which constitute a strike as stated in

Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd.174 In Plascon

supra, the court stated that the first requirement is that there must be a refusal to perform work,

secondly, the refusal must be undertaken by employees175 and lastly, such refusal of work must

167 Chairperson of the Constitutional Assembly, ex parte supra note 149 at 841H. 168 Chairperson of the Constitutional Assembly, ex parte SA supra note 149 at 841H-842A. 169 Food & General Workers’ Union & others v Minister of Safety & Security & others (1999) 20 ILJ 1258 (LC) at 15. 170 G P Thomas Government and the Economy Today (1992) 248, T K Rabb & R I Rotberg Industrialization and Urbanization: Studies in Interdisciplinary History (1981) 138, F Paukert & D Robinson Incomes Policies in the Wider Context: Wage, Price and Fiscal Initiatives in Developing Countries (1992) 159. 171 Stuttafords v SACTWU [2001] 1 BLLR 47 (LAC). 172 s 213 defines a strike as “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purposes of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory”. 173 SA Chemical Workers Union and others v Sentrachem Ltd (1998) 9 ILJ 410 (IC). 174 Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC). 175Khosa and Others v Minister of Social Development and Others 1999 (6) BCLR 615 (CC), FGWU v The Minister of Safety & Security [1999] 4 BLLR 332 LC.

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be purposed to resolve a matter of mutual interest as stated by the LRA.176 In regard to the first

element, the refusal to perform work can be carried out partially or completely.177

In Steel Mining & Commercial Workers Union & others v Brano Industries (Pty) Ltd,178 the

court held that the employees’ refusal to work amounted to a strike. This decision was held even

though the employees alleged that they had not engaged in a strike but rather a meeting over the

dismissal of the shop steward where at such meeting employees demanded that disciplinary

proceedings be suspended.179 The court illustrated that the partial refusal to work even though

not for a lengthy period can amount to a strike. Furthermore, the LRA provides that an act can

constitute a strike even if there is a retardation180 or obstruction of work.

In SA Breweries Ltd v Food & Allied Workers Union & others,181 the court held that the term

‘work’ has to be given a narrow interpretation to define only those actions which the employee is

obliged to perform in terms of the employment contract.182 The court mentioned three significant

constituents of a protected strike. Firstly, there must be a failure, retardation or the obstruction of

work. Secondly, the action must be undertaken as a collective183 and thirdly, the action must be

initiated to compel the employer to submit to the demands of the employees.184

The third requirement is that the strike must be initiated to resolve a dispute concerning a matter

of mutual interest.185 The first aspect of this requirement pertains to the dispute over which the

strike is initiated. The LC and the LAC have on numerous occasions verified that there has to be

an actual dispute over which the employees are engaged in strike action.186 The judiciary is

required to investigate the true nature of the dispute and not merely the way in which the dispute

is presented.187 In SA Scooter & Transport Allied Workers Union & others v Karras t/a

176 Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd supra note 174 at 22. 177 Floraline v SASTAWU [1997] 9 BLLR 1223 (LC). 178 Steel Mining & Commercial Workers Union & others v Brano Industries (Pty) Ltd (2000) 21 ILJ 666 (LC). 179 Steel Mining & Commercial Workers Union & others v Brano Industries (Pty) Ltd supra note 178 at 668B-D. 180 Simba (Pty) Ltd v Food & Allied Workers Union & others (1998) 19 ILJ 1593 (LC). 181 SA Breweries Ltd v Food (1989) 10 ILJ 844 (A). 182 SA Breweries Ltd v Food supra note 181 at 844J. 183 Schoeman v Samsung Electronics (Pty) Ltd [1997]10 BLLR 1364 (LC), NUM v CCMA (2011) 32 ILJ 2104 (LAC). 184 SA Breweries Ltd v Food & Allied Workers Union & others supra note 181 at 846B-G. 185 National Union of Metalworkers of SA v Hendor Mining Supplies (2007) 28 ILJ 1278 (LC). 186 FAWU v Rainbow Chicken Farms [2000] 1BLLR 70 (LC), SATAWU v Coin Reaction (2005) 26 ILJ 150 (LC). 187 Coin Security Group (Pty) Ltd v Adams [2000] 4 BLLR 371 (LAC).

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Floraline,188 the court held that the employees had engaged in an illegal strike as there was no

actual dispute over which the employees had left the employers’ business premises and

continued to stay away from work based on an alleged threat by the employer.189 Thus, the mere

stoppage of work without a ‘purpose’ does not render the employees’ actions as a strike.190 In

addition to the employees' collective refusal to continue work, they are also required to assert a

demand and it must be made known that the refusal to continue work will persist until that

demand is met by the employer.191 The cessation of work must be to induce the employer to

accede to the demands of the employees.192 In regard to the term ‘dispute’ there has been further

clarity pertaining to strikes. In TSI Holdings (Pty) Ltd v National Union of Metalworkers of SA &

others,193 the court mentioned that there are three categories of strikes namely strikes over which

employees have a demand, strikes that have a grievance with an absence of a demand and strikes

which revolve around a dispute.194

The mere collective refusal to work without asserting an actual demand cannot constitute a

strike. In Simba (Pty) Ltd v Food & Allied Workers Union & others195 the issue centered on a

change in staggered tea-breaks. The applicants alleged that this would not have been

implemented without properly consulting the employees. The employees then engaged in a

strike.196 In arriving at its decision, the court considered the definition of a strike under the LRA.

188 SA Scooter & Transport Allied Workers Union & others v Karras t/a Floraline (1999) 20 ILJ 2437 (LC), see also Samancor Ltd v National Union of Metalworkers of SA & others (2000) 21 ILJ 2305 (LC), Pick n Pay (Pty) Ltd v SA Commercial Catering & Allied Workers Union & others (1998) 19 ILJ 1546 (LC). 189 SA Scooter & Transport Allied Workers Union supra note 188 at 2448E-F, Rand Tyres & Accessories v Industrial Council for the Motor Industry 1941 TPD 108, East London (Pty) Ltd v National Union of Metalworkers of SA and others (2007) 28 ILJ 642 (LC). 190 De Beer v Walker 1948 (1) SA 340 (T). 191 Media Workers Association of SA & others v The Argus Printing & Publishing Co Ltd (1984) 5 ILJ 16 (IC), Paper Wood & Allied Workers Union v Uniply (Pty) Ltd (1985) 6 ILJ 255 (IC). Media Workers Association of SA, The & others v Facts Investors Guide (Pty) Ltd & another (1986) 7 ILJ 313 (IC), R v Mtiyana 1952 (4) SA 103 (N), NUM v CCMA (2011) 32 ILJ 2104 (LAC). 192 Ngewu, Masondo v Union Cooperative Bark and Sugar Co Ltd 1982 (4) SA 390 (N), R v Canqan & others 1956 (3) SA 366 (E). 193 TSI Holdings (Pty) Ltd v National Union of Metalworkers of SA & others (2006) 27 ILJ 1483 (LAC). 194 TSI Holdings (Pty) Ltd v National Union of Metalworkers of SA & others supra note 193 at 27, National Union of Metalworkers on behalf of Employees v Commission for Conciliation, Mediation & Arbitration (2011) 32 ILJ 2104 (LAC). 195 Simba (Pty) Ltd v Food & Allied Workers Union & others (1998) 19 ILJ 1593 (LC). 196 Simba (Pty) Ltd supra note 195 at 1595A-G.

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It was noted that even though the actual definition in s 213 does not mention ‘issue in dispute’,

this term can be read into the definition by referring to s 64(1) of the LRA.197

The court highlighted that this was necessary to prevent any confusion and problems which were

encountered under the old Labour Relations Act of 1956 where employees as a collective would

engage in a refusal to work without actually asserting the demand that initiated such refusal.198 It

is for this reason that ‘issue in dispute’ should refer to a demand, grievance or a dispute that

would establish the basis for a protected strike.199 The court held that the employees in casu

failed to use their refusal to work as a method of compellation. The employees were merely

exercising their collective right not to work. The situation would have been different if the

employees refused to work the staggered breaks until there was a grievance resolved.200

There was no actual demand, grievance or dispute which the employees were striking over. The

employees’ refusal to work was held to be a consequence of the implementation of the staggered

breaks, however, it was not regarded as the initiator of the refusal to work.201 It can be concluded

from this case that the court was interested in very specifically, whether there was an articulated

demand, grievance or dispute that initiates the strike. It is quite evident from the facts of a case

whether this is indeed present, as if this was so then the employees in casu would have resumed

work once the dispute over staggered breaks was resolved.

The requirement of the existence of a demand, dispute or grievance as contemplated by s 1 of the

LRA was reiterated in Food & Allied Workers Union & others v Rainbow Chicken Farms.202 The

employees were employed as butchers at Rainbow Chicken Farms on the basis of their Muslim

faith that permitted them to slaughter chickens in terms of Halaal principles. The other

employees of Rainbow Chicken Farms were dependent on the work undertaken by the

slaughterers and could not perform their tasks without the Muslim employees.203 All the Muslim

butchers refused to work on their Muslim religious holiday, Eid ul Fitr. The collective agreement

which regulated the employees’ days off stated that they were only entitled to gazetted public

197 Simba (Pty) Ltd supra note 195 at 1596D. 198 Simba (Pty) Ltd supra note 195 at 1596F-I. 199 Simba (Pty) Ltd supra note 195 at 1596G-H. 200 Simba (Pty) Ltd supra note 195 at 1597F-G. 201 Simba (Pty) Ltd supra note 195 at 1597H-J. 202 Food & Allied Workers Union & others v Rainbow Chicken Farms (2000) 21 ILJ 615 (LC). 203 Food & Allied Workers Union & others v Rainbow Chicken Farms supra note 202 at 615C.

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holidays and Eid ul Fitr was not a gazetted public holiday.204 The employees refused to work on

Eid and were thus held liable in breach of the collective agreement by collectively refusing to

work. They were given two choices. Firstly, they could be dismissed with leave to appeal the

decision. Secondly, they could be given a final warning without leave to appeal the warning. The

employees chose to be dismissed. The employees argued that their dismissals were automatically

unfair in terms of s 188 and s 187(1)(f) of the LRA.205 Reveals J held that the employees had not

been unfairly discriminated against in terms of s 187. However, for purposes of illustrating the

requirement of a collective refusal to perform work in pursuit of a demand, the discussion will

only focus on the employer’s contention that the employees refusal to work amounted to a

strike.206

The employer argued that the actions of the employees constituted a strike. If this was the case

then the strike would have been unprotected and this would have been viewed in a more severe

position than mere unauthorised absenteeism.207 Reveals J considered this argument in light of s

1 of the LRA which endorsed the definition of a strike. The LC placed emphasis on the purpose

of a strike which is to remedy a grievance or resolve a dispute.208 The LC stated that even though

the actions of the employees were collective, they did not refuse to continue work to resolve a

dispute or grievance. There had been no demand asserted by the employees. The employer was

not pressurised to comply with any request declared by the employees.209 If indeed the actions of

the employees amounted to a strike then the employer would have been placed in a situation that

if it had agreed to the employees’ demands then the employees would have returned to work.

The grievance or demand would have disappeared and there would have been no cause for

continuation of the strike. However, this was the reality of the situation in Rainbow Chicken

Farms supra.210 Reveals J held that the employees merely refused to work on Eid because of

their religion. Their actions were the same as the actions of any other employee who would

absent themselves from work for any random reason. The fact that the employees had provided

204 Food & Allied Workers Union & others v Rainbow Chicken Farms supra note 202 at 615D. 205 Food & Allied Workers Union & others v Rainbow Chicken Farms supra note 202 at 615D-E. 206 Food & Allied Workers Union & others v Rainbow Chicken Farms supra note 202 at 620E. 207 Food & Allied Workers Union & others v Rainbow Chicken Farms supra note 202 at 621A-B. 208 Food & Allied Workers Union & others v Rainbow Chicken Farms supra note 202 at 621C, SA Security Employers Association v TGWU & others (2) [1998] 4 BLLR 436 (LC), Flora Line v SASTAWU [1997] 9 BLLR 1223 (LC). 209 Food & Allied Workers Union & others v Rainbow Chicken Farms supra note 202 at 621D. 210 Food & Allied Workers Union & others v Rainbow Chicken Farms supra note 202 at 621E.

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notice of their absenteeism made no difference to the situation as a notice of absenteeism could

be submitted for other reasons of absenteeism as well.211 Therefore, Reveals J held that the

actions of the employees could not amount to a strike as there the necessary element of a

grievance or dispute absent from the employees’ refusal to work.212

Furthermore, it is required that this demand, dispute or grievance is clearly communicated to the

other party as was illustrated in City of Johannesburg Metropolitan Municipality v SA

Municipality Workers Union & others.213 The applicants in City of Johannesburg supra sought

an interdict declaring the strike to be unlawful while awaiting the enquiry of the certificate

declaring that the dispute in issue was unresolved after conciliation. The applicants questioned

the jurisdiction of the conciliator as well as that the six disputes which were referred for

conciliation were not issues which had reached a deadlock as they were merely issues under

discussion and was therefore at that stage not capable of being referred for conciliation.214

In terms of the facts of this case, the court identified that were three issues which could not be

regarded as issues in dispute. The first issue concerned transport of the employees. The court in

this instance highlighted that this issue was not even raised in the meeting held with the

employer and on that basis could not even be regarded as an issue in dispute. The second issue

pertained to parity. The court gave due cognisance to the minutes of the meeting held with the

employer which stated that the agreement which was reached in terms of parity was that

SAMWU would consult with SALGA regarding its proposals and SAMWU would then report

back to the employer.

This would effectively allow the employer to either accept or refuse the demands made by the

unions. SAMWU had not complied with this agreement. Hence, parity was held not to be an

issue in dispute. The last issue raised was that of casualisation. The court did not consider

whether the matter was one that was to be determined by the LC, but rather it studied the minutes

of the meeting held with the employer and determined that this was not an issue that arose as a

dispute. Therefore, it could not be regarded as a dispute which could have been referred to for

211 Food & Allied Workers Union & others v Rainbow Chicken Farms supra note 203 at 621F. 212 Food & Allied Workers Union & others v Rainbow Chicken Farms supra note 203 at 621F. 213 City of Johannesburg Metropolitan Municipality v SA Municipality Workers Union & others (2008) 29 ILJ 650 (LC). 214 City of Johannesburg Metropolitan Municipality supra note 213 at 650J-651B.

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conciliation as the parties had not reached a stalemate.215 There is a distinct similarity in the

method the court adopted for arriving at its decision. This similarity pertains to the fact that all

three issues were not regarded as a demand in the meeting held with the employer. The court

elucidates why this is imperative in dispute resolution and in determining whether a strike would

be afforded protection under the LRA.

The court in casu highlighted that a protected strike can only commence if there is an ‘issue in

dispute’.216 It was further stated that it is during negotiations between the employer and the other

party that an agreement can be concluded on the dispute in issue. Therefore, a strike cannot take

place if the dispute in issue is absent.217 When parties engage in discussions regarding a dispute,

this dispute must be objectively unambiguous so that the other party undoubtedly acknowledges

that this is the dispute in contention. In addition to clearly stating what the issue is, the other

party is required to provide a solution to the dispute in issue.218 The mere fact that the other party

conveys discontent regarding an issue does not automatically give rise to a dispute.219

The court in this regard clearly stipulated that a dispute can only arise if both parties have

contradicting opinions and positions regarding a specific factual situation.220 Essentially, a

dispute emerges if one party says yes and the other party says no. There must be an existing

contention regarding the viewpoint of a particular issue.221 The reason that the court viewed that

the parties should be clearly made aware of the dispute is that the employer should be given the

opportunity to express his viewpoint and deliberate with the other party that would either

conclude in an agreement or result in a deadlock.222

It is submitted that the decision of the court correctly reflects the intention and objectives of the

LRA. The requirement that a dispute be clearly raised during negotiations has two purposes.

Firstly, it allows that both parties obtain complete understanding as to what needs to be decided

215 City of Johannesburg Metropolitan Municipality v SA Municipality Workers Union & others supra note 213 at 661E-I. 216 City of Johannesburg Metropolitan Municipality supra note 213 at 658C. 217 City of Johannesburg Metropolitan Municipality supra note 213 at 658E. 218 City of Johannesburg Metropolitan Municipality supra note 213 at 658F-G. 219 City of Johannesburg Metropolitan Municipality supra note 213 at 658H. 220 City of Johannesburg Metropolitan Municipality supra note 213 at 658H. 221 City of Johannesburg Metropolitan Municipality supra note 213 at 658A, SACCAWU v Edgars Stores Ltd & another (1997) 18 ILJ 1064 (LC), Durban City Council v Minister of Labour & another 1953 (3) SA 708 (D). 222 City of Johannesburg Metropolitan Municipality supra note 213 at 659E-I.

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on. This is important because only if one knows what a dispute is about can a resolution be

found. Secondly and more pertinently, it furthers the objectives of the LRA by ensuring that

there is an opportunity to engage in amicable deliberations regarding the dispute that would

allow both parties equal participation in a way forward. It is submitted that this forms the essence

of the LRA which seeks to obtain peaceful dispute resolution.

In Pikitup (SOC) Ltd v SA Municipal Workers’ Union on behalf of Members & others,223 the

court considered the requirement that a demand has to be a matter of mutual interest. The case

centered on the proposed implementation of a breathalyser testing procedure for all its drivers.

This implementation was a result of approximately 250 drivers reporting drunk to work. The

union opposed this implementation.224 The matter remained unresolved after conciliation and

consequently employees engaged in a strike. The company applied to interdict the strike and

declare same unlawful. The court held that this was not a matter of mutual interest, but rather

that it pertained to the operational management of the company and was excluded from being an

issue which could be collectively bargained. The strike was thus interdicted.225 Upon the return

date of the case, the court found that the strike was a matter of mutual interest and as such was

lawful. The matter was then taken on appeal to determine firstly whether the breathalyser test

was unlawful and secondly, whether health and safety issues were matters of mutual interest.226

However, for purposes of drawing attention to the term ‘matter of mutual interest’, this

discussion will only focus on the second issue brought on appeal.

Musi AJA first analysed the significance of construing the term ‘matter of mutual interest’

widely, as to hold otherwise would have severe ramifications for the right to engage in collective

bargaining. The court considered that the term ‘matter of mutual interest’ was extremely wide

and could encompass a number of issues. It was agreed that this term should include any issue

that directly or indirectly affects the employees within the employment relationship.227 It is

submitted that this is the precise intention of legislature, because if it wanted to restrict this term

to specific issues it would have done so. By interpreting this term broadly, legislature tacitly

acknowledged that there is an unquantified list of issues which would have a bearing on a 223 Pikitup (SOC) Ltd v SA Municpal Workers’ Union on behalf of Members & others (2014) 35 ILJ 983 (LAC). 224 Pikitup (SOC) Ltd supra note 223 at 984D-E. 225 Pikitup (SOC) Ltd supra note 223 at 984F. 226 Pikitup (SOC) Ltd supra note 223 at 984G-H. 227 Pikitup (SOC) Ltd supra note 223 at 1000F-G.

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particular trade that would affect an employee and his employer.228 This was also the position of

legislature prior to the promulgation of the LRA.229 Therefore, the term must be construed in a

literal sense to include any issue within the employment relationship.230 However, Musi AJA

stated that even though the LAC should broadly interpret the term ‘matter of mutual interest’, the

LC and the LAC must be careful not to afford an overly extensive interpretation of the term that

would include any issue as a subject matter of a strike. The court stated that where the issue

pertains to a socio-economic or political nature, then such a dispute cannot be regarded as a

subject matter for a strike as the employer would be confronted with uncertainty and would be

completely out of his control.231 This is a correct reflection of the intention of legislature as the

LRA has provided an extensive regulation of the right to strike to ensure that the right can be

adequately controlled and its potential destruction minimalised.232

The LAC turned to the Occupational Health and Safety Act of 85 of 1993 (hereinafter referred to

as the OHSA) to determine that a wide interpretation of the term ‘matter of mutual interest’ was

essential to give effect to the right to engage in collective bargaining. Musi AJA highlighted that

the OHSA requires both the employer and the employee to work together to provide a safe and

healthy workplace. The LAC held that the purpose of the OHSA is in line with the intention of

collective bargaining which is to ensure that employers and employees engage in cohesive

interaction to resolve disputes.233 It was further held that the decision handed down by Snyman J

in the LC was too narrow as it limited collective bargaining to only issues which pertained to

terms and conditions of employment. Furthermore, Musi AJA stated that the LC’s decision did

not take into account that there is an implied condition within an employment contract which

entails that employees are entitled to work in a healthy and safe environment.234

It was thus argued that due to the power that management possesses, it is capable of

implementing health and safety procedures that ostensibly appear to be in the employees’ best

interest. However, the employees may hold that such procedures are contrary to their interests. If

health and safety issues were exempt from collective bargaining then employees would be 228 Minister for Labour & Minister for Justice 1941 TPD 108 at 115. 229 Rand Tyres & Accessories v Industrial Council for the Motor Industry (Transvaal) 1941 TPD 108. 230 De Beers Consolidated Mines Ltd v CCMA & others [2000] 5 BLLR 578 (LC) at 581C. 231 Pikitup (SOC) Ltd supra note 223 at 1000H-I. 232 Durban City Council v Minister of Labour 1948 (1) SA 220 (N). 233 Pikitup (SOC) Ltd supra note 223 at 1003A-D. 234 Pikitup (SOC) Ltd supra note 223 at 1003A-C.

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prevented from deliberating on issues that could potentially be obtrusive to their rights.235 It is

submitted that this ruling is in accordance with the primary purpose of the LRA which is to

ensure that employees engage in collective bargaining so that their rights are not in any way

infringed by the dictates of the employer. It was on this basis that the court concluded that health

and safety issues are matters of mutual interest.236

This point was further elucidated in Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines v

Transport & General Workers Union & Others,237 where the court held that a demand over

equity shareholding of 20% amounted to a dispute of mutual interest and is therefore a matter

over which employees may engage in industrial action.238 The court arrived at its decision based

on the fact that the right to strike can be used as an instrument to obtain fair conditions of

employment as well as acquire new rights. The employment environment is one that has to

constantly adapt and reform according to new developments in society. Therefore, issues which

revolve in and around bargaining have to be flexible to accommodate these changes.239 It follows

from this case that the court is not willing to apply a stringent test in determining whether a

dispute is one that amounts to a matter of mutual interest. The most pertinent issue which can be

derived from precedent is that the dispute must affect both the employer and employee. The mere

fact that an act constitutes a strike does not in itself render the strike lawful.

4.5.1. SECONDARY STRIKES

The LRA not only provides for the protection of primary strikes but also for secondary strike

action.240 Essentially, a secondary strike is initiated to further and support the primary strike.

235 Pikitup (SOC) Ltd supra note 223 at 1001A-C. 236 Pikitup (SOC) Ltd supra note 223 at 1001A-C. 237 Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines v Transport & General Workers Union & others (2009) 30 ILJ 1099 (LC). 238 Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines supra note 237 at 1121E-H. 239 Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines supra note 237 at 112OF-I. 240 s 66(1) defines a secondary strike as: “a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer, but does not include a strike in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in the demand”, L Booysen, H M Erasmus & M D Van Zyl The Auxiliary Nurse (2004) 11.

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Therefore, it is not necessary for secondary strikers to have a dispute with their employer.241 A

secondary strike must comply with the general requirements of a strike as defined in the LRA.242

The first requirement for the protection of the secondary strikes is that the primary strike must be

protected in order for the secondary strike to also receive protection.243 This was clearly

explained in Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd supra

where the LAC emphasised that a secondary strike will be afforded protection if the primary

strike has followed the procedure for a protected strike as enshrined in s 64 of the LRA.244 The

case centred on a deadlock between the Industrial Chemical Group (ICG) and the union. The

union followed the stipulated process and for all intents and purposes, the strike was deemed to

be protected.245 However, the focal point which the court addressed was how far the protection

extended and whether protection was only for those employees of the employer who were

directly affected by the strike demand or whether employees who were not directly affected by a

dispute were prohibited from engaging in a strike to support their co-workers.246

Cameron JA considered the employer’s contention that the terms and conditions of employment

of employees outside of the bargaining unit differed from the terms and conditions of those

employees who were part of the bargaining council. The interests of non-bargaining unit

employees were different from those who were members of the bargaining unit.247 The dispute

which the employer had referred to the CCMA related to the ICG’s failure to reach consensus on

demands pertaining to the bargaining unit. The strike was in furtherance of these demands.

However, the non-bargaining unit members were not party to the strike dispute and had no

interest in the outcome of the strike. Therefore, their participation in the strike was

unprotected.248

241 SA Clothing & Textile Workers Union v Free State & Northern Cape Clothing Manufacturers‘ Association (2001) 22 ILJ 2636 (LAC). 242 s 213. 243 s 66 (1). 244 Chemical Workers Industrial Union v Plascon supra note 174 at 323A. 245 Chemical Workers Industrial Union v Plascon supra note 174 at 323A-C. 246 Chemical Workers Industrial Union v Plascon supra note 174 at 323A-C. 247 Chemical Workers Industrial Union v Plascon supra note 174 at 323H-J. 248 Chemical Workers Industrial Union v Plascon supra note 174 at 323H-J.

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Cameron JA considered that where a constitutional right is entrenched without express

limitations, such limitations should not be “cut down to read implicit limitations into them”.249

Cameron JA highlighted that the LRA imports express limitations on the right to strike. These

express limitations include formal procedures for a protected strike and material limitations on

who is permitted to strike.250 The court noted that there was no express limitation in the LRA

which limited strikes by only those who are directly affected by a dispute and consequently went

on to consider whether such limitation could then be imported into s 66(1) of the LRA. This,

however, had to be interpreted in light of the LRA.251

The LC went on to analyse the definition of the term ‘strike’. Cameron JA stated that the

definition consisted of three basic elements. Firstly, there has to be non-performance of labour,

secondly, this must be undertaken by employees and thirdly, it must be for a purpose.252 The

court decided that the most significant aspect of the definition stated that there has to be a

common purpose of resolving the dispute of mutual interest between the employer and the

employee. The court further noted that this is as far as any mutuality extends. There is no

evidence to support the assertion that employees have the same employer or have the same

interest in the dispute. It was further highlighted that the definition of ‘strike’, more specifically

does not indicate who the parties of the dispute have to be.253 Cameron JA held that the

definition of term ‘strike’ was broad enough to include both primary and secondary strikes. The

definition can also include strikes which involve the same employer who are not directly affected

by the strike dispute.254

The LC stated that this broad definition was in line with the LRA’s definition of ‘issue in

dispute’ which does not specify the identity of the parties to the dispute and thus poses no

limitation on who they may be.255 Furthermore, the word ‘other’ within the definition of

secondary strikes enshrined in s 66(1) of the LRA denotes that legislature intended that other

employees who are not employed by the same employer may embark on strike action in support

249 Attorney-General v Moagi 1982 (2) Botswana LR 124, S v Zuma & others 1995 (2) SA 642 (CC). 250 Chemical Workers Industrial Union v Plascon supra note 174 at 327E-F. 251 Chemical Workers Industrial Union v Plascon supra note 174 at 327G-H. 252 Chemical Workers Industrial Union v Plascon supra note 174 at 327G-I. 253 Chemical Workers Industrial Union v Plascon supra note 174 at 328A-B. 254 Chemical Workers Industrial Union v Plascon supra note 174 at 328A-B. 255 Chemical Workers Industrial Union v Plascon supra note 174 at 328C-D.

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of co-employees on condition that their actions are protected under s 66(1) of the LRA.256

The LC agreed that the purpose of s 64(1) was intended to ensure that employees followed the

procedure stipulated by the LRA. Once such requirements are met, there are no other procedures

specified by the LRA. There are no express or implicit limitations which prove that the LRA

envisaged that employees be limited to only demands which directly had an interest in.257

Therefore, it was held that once the statutory procedures have been fulfilled, a strike will be

deemed protected and a union is permitted to call all its members in support of the strike.258 It is

submitted that this decision is correct. A significant aspect that the court deals with is the

purpose of the LRA. It is imperative to note that the LRA has been promulgated to enforce the

constitutional right to strike. The reason the LRA imposes statutory procedures is to ensure that

the dispute resolution process is first followed and that strikes are only a last resort.259 Once

statutory procedure is followed, a strike would be afforded protection. Once such protection is

afforded and the main aim of the LRA is fulfilled, there is no logical reason why an additional

limitation should be imported. The LRA provides express limitations on the right. It serves to

reason that if the LRA envisaged that this right be limited to employees who are directly affected

by a dispute, then it would have expressly entrenched the limitation along with the other

limitations.260 The LRA does not merely require that a nexus exists between the primary

employer and the secondary employer. There is an additional requirement that the secondary

strike be reasonable in a way that the pressure exerted on the secondary employer is the same as

that placed on the primary employer.261

The second requirement for a lawful secondary strike is that the employer must receive seven

days’ notice of the intended strike. The third requirement is that there has to be a link between

the primary employers’ business and the secondary employers business so that the nature and

256 Chemical Workers Industrial Union v Plascon supra note 174 at 328C-D. 257 Chemical Workers Industrial Union v Plascon supra note 174 at 328A-B. 258 Chemical Workers Industrial Union v Plascon supra note 174 at 329I-J. 259 Chemical Workers Industrial Union v Plascon supra note 174 at 329A-D. 260 Chemical Workers Industrial Union v Plascon supra note 174 at 329A-D. 261 R Pillay ‘Secondary Strikes-Protected or not?’ 2012 Labour Update-The way forward 2.

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extent of the secondary strike affects the business of the primary employer.262 The effect on the

primary employer must be economic in nature.263

The test for reasonableness was established in Billiton Aluminium SA Ltd supra,264 where the

court determined that the secondary strike has to be “reasonable in relation to the business of the

primary employer”.265 The employees of Samancor embarked on a protected strike which was

followed by a sympathy strike by workers employed by Billiton Aluminium SA Ltd (BASAL) in

support of the members of NUMSA employed by Samancor.266 The employer sought an interdict

to restrain the strike at BASAL on the basis that it was unprotected.267

Pillay J first considered that s 66(2)(c)268 of the LRA requires that a secondary strike have an

effect on the business of the primary employer. This is based on the acceptance that there has to

be a nexus linking the secondary employer or the employees to the primary employer or the

employees. If no nexus exists there can be no effect on the business of the employer. Thus, there

would be no further enquiry.269 Additionally, the secondary strike is also expected to be

reasonable to the primary employer’s business. This reasonableness is what qualifies the

necessary effect between the secondary and primary employer.270 Reasonableness pertains to the

extent and the nature of the secondary strike. The scope of the strike concerns the actual strikers

and workplaces which participated in the strike as well as the length of the strike.271 However,

there only needs to be a possible direct or indirect effect in terms of the nature and the extent of

the secondary strike.272 There are no clear limitations embedded within s 66(2)(c), thus the

262 s 66 (1), Samancor Ltd & another v NUMSA [1999] 11 BLLR 1202, W C Vaughn A Lawyers’ Guide to Doing Business in South Africa (1996) 126. 263 Hextex & other v SA Clothing & Textile Workers Union & others (2002) 23 ILJ 2267 (LC). 264 Billiton Aluminium SA Ltd v National Union of Metalworkers of SA (2001) 22 ILJ 2434 (LC). 265 Billiton Aluminium SA Ltd v National Union of Metalworkers of SA supra note 264 at 2436[2]. 266 Billiton Aluminium SA Ltd v National Union of Metalworkers of SA supra note 264 at 2434G-H. 267 Billiton Aluminium SA Ltd supra note 264 at 2434H-I. 268 s 66(2)(c) states: “No person may take part in a secondary strike unless…the nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer”. 269 Billiton Aluminium SA Ltd supra note 264 at 2436B-C. 270 Billiton Aluminium SA Ltd supra note 264 at 2436D. 271 Billiton Aluminium SA Ltd supra note 264 at 2436E. 272 Billiton Aluminium SA Ltd supra note 264 at 2436F.

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judiciary has a very wide discretion in determining whether a secondary strike is reasonable or

not.273

In application of s 66(2)(c), Pillay J highlighted that there was a nexus which existed between the

secondary and primary employer for three reasons. Firstly, BASAL was completely owned by

BPH Billiton. BPH Billiton owned 60% of shares in Samancor the business of the primary

employer.274 Secondly, the LC noted that Samancor, BPH Billiton and BASAL were

administered by independent boards although they were public bodies and thirdly, all three

entities were vulnerable to a negative market reaction if industrial action had to take place.275

Pillay J reasoned that the secondary strike could indirectly affect the primary employer as a

result of the inter-connected construction of these three bodies, the level of ownership by BHP

Billiton in the secondary and primary employer’s business and the market reaction on shares

caused by the secondary strike.276

Once the court was satisfied that a nexus existed between the primary and secondary employer’s

business, Pillay J was also called upon to investigate the second enquiry which was whether the

nexus had a possible effect on the business of the primary employer. In doing so, Pillay J

considered two pertinent cases. The first case that was analysed was Samancor Ltd & another v

National Union of Metalworkers of SA.277 The employees of Samancor and Manganese Metal

were interdicted from engaging in a secondary strike on behalf of NUMSA members employed

by Columbus Steel Joint Venture.278 The basis for the applicants’ contention was that the

secondary strike was not reasonable or proportional to the primary employer’s business as

required under s 66(2)(c).

In making a determination, Landman J stated that an enquiry into the corporate relationship of

the Columbus Steel Joint Venture, Manganese Metal and Samancor had to be undertaken to

determine the possible direct or indirect effect of the secondary strike on the primary

employer.279 In light of the facts of the case, Landman J held that Manganese Metal and

273 Billiton Aluminium SA Ltd supra note 264 at 2437B. 274 Billiton Aluminium SA Ltd supra note 264 at 2435B. 275 Billiton Aluminium SA Ltd supra note 264 at 2435B. 276 Billiton Aluminium SA Ltd supra note 264 at 2435C. 277 Samancor Ltd & another v National Union of Metalworkers of SA (1999) 20 ILJ 2941 (LC). 278 Samancor Ltd & another v National Union of Metalworkers supra note 277 at 2942C-D. 279 Samancor Ltd & another v National Union of Metalworkers supra note 277 at 2942H-I.

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Samancor apparently conducted business together as some of Manganese Metal’s plants were

carried out together or was within the ambit of Samancor’s management. However, Manganese

Metal was not an instrumental supplier of chrome to Columbus Steel.280 It is imperative to note

that chrome was a pivotal metal which underpinned the processes of Columbus Steel. Therefore,

the strike which took place at Manganese Steel could not have had a possible effect either

directly or indirectly on the business of Columbus Steel.281 Even though Manganese Metal was

completely owned by Samancor, this only created a nexus between Manganese Metal and

Columbus Steel. A simple nexus between the primary employer and the secondary employer

without the secondary strike having an effect on the business of the primary employer was

insufficient.282

In regard to Samancor, Landman J held that 80% of Columbus Steel was supplied by Samancor.

Furthermore, Samancor and Columbus Steel had embarked on a joint undertaking. Therefore, the

strike at Samancor would have influenced the operations of Columbus Steel.283 The LC

specifically highlighted that it was insignificant that Samancor did not have authority over the

everyday running of Columbus Steel as this strike was not about the everyday running of the

business, but rather it was about capital and an increase in wages to NUMSA members.284

Therefore, Samancor had an evident and justifiable economic interest which could have been an

incentive to influence negotiations between the union’s members and Columbus Steel.285 The LC

accordingly held that on these grounds that a nexus existed between the primary employer’s

business and the secondary strike.286

Landman J then engaged in the second enquiry which pertained to whether the secondary strikes

at Samancor and Manganese Metal were reasonable in light of the nature and extent of these

strikes in regard to Columbus Joint Venture.287 The LC considered this in light of s 66(2)(c)

which in terms of the nature and extent of the strike compel an investigation into the reservation

of performing work, the timing of the strike as well as other considerations such as the possible

280 Samancor Ltd & another v National Union of Metalworkers supra note 277 at 2942H-I. 281 Samancor Ltd & another v National Union of Metalworkers supra note 277 at 2942H-I. 282 Samancor Ltd & another v National Union of Metalworkers supra note 277 at 2942H-I. 283 Samancor Ltd supra note 277 at 2943A. 284 Samancor Ltd supra note 277 at 2943A. 285 Samancor Ltd supra note 277 at 2943B. 286 Samancor Ltd supra note 277 at 2943B. 287 Samancor Ltd supra note 277 at 2943B.

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effects on the business of Columbus Steel.288 The court held that it would have been reasonable

if NUMSA only engaged in strikes against chrome ore mines, chrome or ferro alloy plants under

Samancor’s ownership as these plants have an effect on the production of chrome which is

necessary for production at Columbus Steel.289 However, Landman J held that in regard to

Manganese Metal the secondary strikes which took place at its plants and mines would not have

had an effect on the primary employer as the business was not a major supplier of chrome to

Columbus Joint Venture.290 Therefore, the court held that an interdict against Manganese Metal

was justified, however, an interdict against Samancor had to be limited only to the chrome, alloy

and ferro plants as this would have had a reasonable effect on the business of the primary

employer.291

The court in Billiton supra also highlighted the case of Sealy of SA (Pty) Ltd & others v Paper

Printing Wood & Allied Workers Union292 in its judgment. In Sealy supra the LC was called

upon to adjudicate an urgent interdict against a proposed strike by the secondary employers. In

analysing s 66(2)(c) of the LRA, Basson J quoted legal authors who stated that s 66(2)(c)

establishes a concept of proportionality. The legality of the secondary strike is founded upon the

impact such a strike might have on the primary employer’s business.293 Basson J determined that

the secondary employers and the primary employer operate in two entirely different trades. The

secondary employers are engaged in manufacturing of mattresses, wall units, furniture as well as

supplying bedding to other businesses. The primary employer is engaged in the production of

paper and pulp industry.294 The LC stated that on this basis there can be no nexus between the

secondary employer and the primary employer.

The court then considered the argument by the union that there was a nexus between the primary

employer and the secondary employer on the basis that Anglo American is a shareholder in the

primary employer’s company.295 Basson J addressed this argument with the fact that Anglo

American’s shareholding only amounts to 1% of Afcol, the primary employer and on this basis

288 Samancor Ltd supra note 277 at 2943B. 289 Samancor Ltd supra note 277 at 2943C. 290 Samancor Ltd supra note 277 at 2943C. 291 Samancor Ltd & another v National Union of Metalworkers of SA supra note 277 at 2943D. 292 Sealy of SA (Pty) Ltd & others v Paper Printing Wood & Allied Workers Union (1997) 18 ILJ 392 (LC). 293 Sealy of SA (Pty) Ltd supra note 292 at 395C. 294 Sealy of SA (Pty) Ltd supra note 292 at 395E-F. 295 Sealy of SA (Pty) Ltd supra note 292 at 395J.

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such a contention is weak. The court stated that there was an insufficient nexus between the

secondary employer and the primary employer in respect of the scope and nature of the

secondary strike would have on the direct or indirect impact on the business of the primary

employer.296

The court in Billiton supra stated that these cases emphasised two points namely that there has to

be a nexus between the primary employer and the secondary employer, however slight that nexus

might be.297 Secondly, the effect of the secondary strike must be reasonable in terms of the

nature and the extent of the secondary strike on the primary employer’s business.298 In light of

Sealy supra, it can be acknowledged that the nexus must not weak in nature. There are three

reasons that Pillay J proffers which validates the strong indirect nexus between the secondary

employer and BHP Billiton. Firstly, the common factor is that all three bodies are administered

by autonomous boards. Secondly, they are all public bodies and thirdly, they would all suffer

some loss in share prices as a result of the secondary strike.299

The second enquiry that the LC made was in light of Samancor supra which necessitates that the

extent and nature of the secondary strike has to be reasonable to the primary employer’s

business.300 The court in Billiton supra held that the complete stoppage by all employees of the

secondary employers would have a possible effect on the business of the primary employer.

Even if the primary employer continues its business through the use of replacement labour, the

secondary strike would still have an effect on the primary employer’s business.301 The court

further elaborated that this effect would be colossal as the applicant had a business in which

unhindered production was essential. The cost to re-commission smelters would be too great and

furthermore, the length of time that it would take to do this would be vast. This meets the

requirement of the possible reasonableness of the extent and the nature of the secondary strike on

the primary employer.302

296 Sealy of SA (Pty) Ltd Union supra note 292 at 396E-F. 297 Sealy of SA (Pty) Ltd supra note 292 at 395B. 298 Samancor Ltd supra note 238 at 2943C. 299 Billiton Aluminium supra note 264 at 2438E-F. 300 Samancor Ltd supra note 277 at 2943C. 301 Billiton Aluminium supra note 264 at 2438G-H. 302 Billiton Aluminium supra note 264 at 2438I-J.

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In Hextex & others v SACTWU & others,303 the court considered the term ‘possible’ in terms of s

66(2)(c). An urgent application was brought by Hextex, Romatex and Berg River, which were all

subsidiaries of the Seardel Group Trading (Pty) Ltd, to declare the secondary strikes that were to

take place to be unprotected.304 The court noted that the union bore the onus of proving that it

had complied with the jurisdictional prerequisites that entitled it to invoke the provisions of s

66(2)(c) of the LRA.305 Furthermore, the LC acknowledged that s 66 (2)(c) stated that the effect

on the primary employer merely be a possibility of being direct or indirect. Pillay J emphasised

that the term ‘possible’ possessed two meanings. The first meaning in terms of the common

interpretation of the provision was that the word alluded to something that was likely to happen,

probable of occurring or existing. This interpretation reduced adherence with the provision

considerably low.306

Pillay J stated that in terms of the second interpretation the word ‘possible’ could be substituted

with the word ‘potential’. This would infer a greater level of adherence to the provision.307 This

interpretation would require a valid assessment and would place an onerous task on determining

the powerfulness that the effect of the secondary strike could have on the primary employer.308 A

further implication of the second interpretation is that if the secondary strike is deemed to have a

powerful effect then it should be allowed; however, if the strike has a slight effect or has no

effect on the primary employer then such a secondary strike would not be permissible.309 On the

other hand, the second interpretation would also imply that even if there is no powerful effect by

the secondary strike, such a strike would be permissible because it has an insignificant impact on

the country’s economy. However, in terms of Billiton supra the effect that the strike has on the

secondary employer is of no concern. Thus, the second interpretation would cause much

uncertainty.310 Furthermore, this interpretation would be intrusive on the right to collective

bargaining which is based on the concept of self-regulation of industrial affairs. Lastly, Pillay J

noted that the second interpretation overlooks that fact that secondary strikes do not occur

303 Hextex & others v SACTWU & others (2002) 23 ILJ 2267 (LC). 304 Hextex supra note 303 at 2267F-G. 305 Hextex supra note 303 at 2267H-I. 306 Hextex supra note 303 at 2267I. 307 Hextex supra note 303 at 2271H-I. 308 Hextex supra note 303 at 2271I. 309 Hextex supra note 303 at 2271J. 310 Hextex supra note 303 at 2272A.

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suddenly but rather that they grow gradually.311 This interpretation presupposes that there are

different stages of a strike. Consequently, the question arises during which stage the secondary

strike’s powerfulness or potential should be evaluated?312

Pillay J stated that because the right to strike is a constitutionally protected right then the least

restraining interpretation should be afforded to this right.313 Furthermore, the court highlighted

that due to the lack of evidence presented the LC was unable to assess the powerfulness that the

secondary strike would have on the primary employer. This would be a continuous problem as

urgent applications do not allow sufficient time to submit an investigator’s report nor does the

urgent application allow for an analysis of the primary employer’s participation in the strike. In

terms of the second interpretation the court would be required to anticipate the effect that the

secondary strike would have on the primary employer on a balance of probabilities.314 The court

thus decided to follow the first interpretation of the word ‘possible’. Pillay J stated that the effect

of s 66(2)(c) is to ensure that the secondary strike’s extent and nature is capable of creating an

effect on the business of the primary employer.315 A secondary strike would be reasonable if the

workers of the secondary employer exert pressure on their employer who in turn exerts pressure

on the primary employer to negotiate with its employees to reach a resolution to their dispute. If

the possible result of the secondary strike is to facilitate bargaining between the employer and

the employees then the secondary strike will be deemed to have a probable effect on the primary

employer and should thus be afforded protection.316 The court stated that the effect that the

secondary strike should have must be of an economic or commercial nature. The mere

inconvenience incurred by the primary employer would be insufficient to meet this

requirement.317

Pillay J analysed the above principles in light of the facts of the case. Pillay J held that the link

with the other divisions of the applicant is indirect; however, these divisions are capable of

311 Hextex supra note 303 at 2272B. 312 Hextex supra note 303 at 2272C. 313 Peter v Peter & others 1959 (2) SA 347 (A), Arenstein v Secretary for Justice 1970 (4) SA 273 (T), Government of the Islamic Republic of Iran v Berends 1998 (4) SA 107 (Nm), Principal Immigration Officer v Bhula 1931 AD 323, S v Gelderblom 1962 (1) SA 497 (C), Nyamakazi v President of Bophuthaswana 1992 (4) SA 540 (BG), Majavu 1994 (4) SA 268 (CK), Kauesa Minister of Home Affairs 1996 (4) SA 965 (Nm). 314 Hextex supra note 303 at 2272E-F. 315 Hextex supra note 303 at 2272I-J. 316 Hextex supra note 303 at 2272I-J. 317 Hextex supra note 303 at 2273A.

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exerting force on the applicant who will be compelled to order its divisions which have a direct

link with Team Puma to stop trading with Team Puma.318 This would have an effect on Team

Puma regardless of whether this effect was great or not. The LC was thus unwilling to conclude

there would be no effect on the primary employer as a result of the secondary strike.319 Pillay J

held that this nexus between the primary employer and the secondary employer was sufficient to

pressurise the primary employer to engage in bargaining with its employees.320 The pressure

inflicted by the secondary strike on the primary employer would be in the form of a complete

cessation of work. This would be extremely harmful to the secondary employer which would be

an incentive for the secondary employer to pressure the primary employer. Pillay J thus

concluded that in light of the above reasons the applicant had failed to prove that there was an

evident right to interdict the employees from engaging in the secondary strike.321

4.5.2. PROTEST ACTION

The LRA also provides for the right to engage in protest action.322 This is indeed a great

advancement, as this right has not received protection in our country previously.323 Protest action

can include actions such as picketing, go-slows, stay-aways, work-to-rule and sit-ins.324 The right

to protest action extends further than the employment relationship, as it differs from strikes in

that it seeks to advance the “socio-economic interests of workers”. In Government of the Western

Cape Province v Congress of SA Trade Unions & another (COSATU) 325 the court considered

the term ‘socio-economic interest’. The applicant applied for the interdict against the protest

action on the ground that the demands referred to educational issues and not to socio-economic

issues. The court in this regard noted that it is difficult to put an exact definition to the term

‘socio-economic interest’, as its interpretation would depend on the circumstances of each

318 Hextex supra note 303 at 2275D-E. 319 Hextex supra note 303 at 2275D-E. 320 Hextex supra note 303 at 2275E. 321 Hextex supra note 303 at 2275F. 322 s 77. 323 Mbiyane v Cembad t/a TA Art Centre (1989) 10 ILJ 468 (IC), Dlali v Railit (1989) 19 ILJ 353 (IC), SA Laundry, Dry Cleaning, Dyeing & Allied Workers Union v Advance Laundries t/a Stork Napkins (1985) 61 544 (IC). 324 S Van der Veldon … et al Strikes Around the World, 1968-2005: Case-Studies of 15 Countries (2007) 67. 325 Government of the Western Cape Province v Congress of SA Trade Unions & another (1999) 20 ILJ 151 (LC).

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case.326 It was held that this term refers to any demand in pursuance of “social status and

economic position of the workers in general”.327

The court considered that this term has to be broadly defined given our country’s past. It was

held that the demands regarding education fell within the ambit of socio-economic interests as

COSATU through these demands attempted to undo the inequalities of our past especially with

regard to education.328 Therefore, due to the interests protest action seeks to uphold, the court

requires that very persuasive reasons be given to limit this right.329 In Business SA v COSATU &

another,330 the court held that the right to protest action has to be construed in a wider context

than merely the workplace. It extends to society and has an impact on the economy.331

Another aspect of protest action which the LRA endorses is the right to picketing.332 Picketers

are obliged to comply with the Code of Good Practice on Picketing,333 which regulates the

enforcement of this right. The court in Picardi Hotels Ltd v FGWU & others,334 sets out the

activities which are deemed acceptable. If employees engage in violence or any other criminal

act, their conduct will be regarded as unlawful335 and will not be protected against dismissal.336

4.6. CONCLUSION

It is essential to note the LRA has been a defining piece of legislation in South Africa. It has

effectively included every employee under its banner in an attempt to implement transformation

in labour relations.337 The main purpose of the LRA, which has been discussed extensively

throughout this chapter, is to provide an economic and accessible dispute resolution framework.

326 Government of the Western Cape Province v COSATU supra note 325 at 158[17]. 327 Government of the Western Cape Province v COSATU supra note 325 at 158[17]. 328 Government of the Western Cape Province v COSATU supra note 325 at 159[19]. 329 Government of the Western Cape Province v COSATU & another [1998] 12 BLLR 1286 (LC). 330 Business SA v COSATU & another [1997] 5 BLLR 511 (LAC). 331 Business SA v COSATU & another supra note 330 at 517-518. 332 s 69 which states that “[a] registered trade union may authorise a picket by its members and supporters for the purpose of peaceful demonstration”. 333 GN 765 of 1998. 334 Picardi Hotels Ltd v FGWU & others [1999] 6 BLLR 601 (LC). 335 Picardi Hotels Ltd v FGWU & others supra note 334 at 25. See also Lomati Mill Barberton (A division of Sappi Timber Industries) v PPWAWU & others [1997] 4 BLLR 415 (LC), FGWU & others v The Minister of Safety and Security & others [1999] 4 BLLR 332 (LC). 336 National Education Health & Allied Workers Union obo Cornelius & others and High Rustenburg Hydro (2004) 25 ILJ 1339 (CCMA), Food & General Workers Union & others v Minister of Safety & Security & others (1999) 20 ILJ 1258 (LC). 337 I Cheminais … et al The Fundamentals of Public Personnel Management (1998) 106.

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The essence of these procedures is to ensure that employers and their employees equally

contribute to growth, harmony and productivity of the workplace.338

The increased productivity and stability in the workplace in turn seeks to advance the purpose of

the LRA which is to ensure the improvement of the socio-economic interests of society at large.

It is clearly evident from the exploration of the LRA in this chapter that an extensive framework

has been developed to resolve disputes rather than having employees resort to strike action. The

entrenchment of the right to strike is therefore indicative of legislature’s attempt to balance the

interests of both employees and employers. The enforcement of this right illustrates positive

developments in our law. The right to strike, however, is not an absolute right and consequently

various limitations are included in the LRA to ensure that the right is not abused. These

limitations will be discussed in the next chapter.

338 M R Smith & G T Wood ‘The end of Apartheid and the organization of work in manufacturing plants in South Africa’s Eastern Cape province’ (1998) 12(3) Work, Employment & Society 482.

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CHAPTER FIVE

THE REGULATION OF INDUSTRIAL ACTION

5.1. INTRODUCTION

The entrenchment of the right to strike necessitates proper guidelines on how it should be

enforced to guard against the abuse of the right to strike.1 Therefore the LRA includes explicit

prohibitions which indicate when strikes are regarded as illegal.2 These prohibitions are relevant

as they form a guideline that determines whether a strike is protected. Even though s 23 of the

Constitution enshrines the right to strike, this right must be exercised according to the limitations

provided by the LRA.3 Furthermore, these limitations are necessary to ensure that public peace

and order are maintained.

If strikers engage in criminal behavior during a strike that threatens the health and safety of

society, then there are a number of measures which the LRA implements to quell the illegal

strikes.4 Such consequences are essential to deter strikers from criminal activity during a strike in

order to protect the basic human rights of employees and society at large. These repercussions

for illegal behavior are vital to ensure that strikers who do not comply with the LRA are held

accountable for their actions.5 However, the mere fact that the LRA enshrines various limitations

does not mean that they are adhered to.

5.2. PROCEDURE FOR PROTECTED STRIKES

The LRA has entrenched a clear procedure which must be followed for a strike to be protected,6

however, if these specific procedures are not followed, then employees forfeit the protection

1 L Brookshaw & A Nayanah ‘Strikes’ (2012) 12(6) Without Prejudice 57. 2 V B Gosai ‘Strike action’ (2012) 12(10) Without Prejudice 27. 3 H J Deacon ‘The balancing act between the constitutional right to strike and the constitutional right to education’ (2014) 34(2) South African Journal of Education 4. 4 K O Odeku ‘An overview of the right to strike phenomenon in South Africa’ (2014) 5(3) Mediterranean Journal of Social Science 696. 5 D L Kgosimore ‘Workplace violence: A criminological analysis of a violent labour strike in South Africa’ (2007) 20(2) Acta Criminologica 62. 6 The LRA; s 64.

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attributed to the right to strike.7 The LRA provides for two procedural requirements to be

followed to ensure the protection of a strike.8 The first procedure is that employees and

employers are compelled to engage in conciliation. If conciliation is unsuccessful or if the matter

has been referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) for 30

days without resolution then a certificate will be issued indicating that the dispute remains

unresolved.9 The second requirement is that the union must furnish the employer with 48 hours

notice of its intention to strike.10 Thus, for the purposes of this section pertaining to procedure,

the discussion will only focus on the second requirement pertaining to 48 hours’ notice.

5.2.1 The requirement of 48 hours notice

The primary element that makes way for a lawful strike is that the parties must provide 48 hours

notice to the employer of the intended strike.11 The Supreme Court of Appeal (SCA) was called

upon to adjudicate on the requirement of 48 hours notice in the landmark case of Equity Aviation

v SATAWU.12 In Equity Aviation, SATAWU represented 725 of the 1157 Equity Aviation’s

employees. As a result of failed negotiations, SATAWU supplied the employer with the required

48 hours notice of its intention to strike. The strike persisted for four weeks involving both

represented employees and unrepresented employees. The strike was deemed lawful for the

represented employees who had complied with the LRA; however, the unrepresented employees’

participation was not regarded as lawful as they had failed to give a separate notice of their

intention to strike.13 Consequently, the unrepresented employees were dismissed for prolonged

unauthorised absenteeism. The dismissed employees referred the matter as an automatically

unfair dismissal. The Labour Court found that the employees formed part of the union’s

membership at the time of the strike; however, regardless of this ruling the employees’

membership was not a prerequisite for their lawful participation in the strike.14 On appeal this

decision was set aside by the LAC. The majority decision, in which Khampepe ADJP and Davis

JA concurred, reasoned that to necessitate a separate strike notice by non-represented employees

7 SA Chemical Workers Union and others v Sentrachem Ltd (1998) 9 ILJ 410 (IC). 8 M Muller, M Bezuidenhout & K Jooste Healthcare Service Management 2nd ed (2011) 398. 9 D Keith Understanding the CCMA Rrules and Procedures (2011) 22. 10 P Le Roux ‘Giving notice of strike action’ (2012) 22(5) Contemporary Labour Law 41. 11 H Landis & L Grosset Employment and the Law: A Practical Guide for the Workplace 3rded (2014) 294. 12 Equity Aviation v SATAWU (478/09) [2011] ZASCA 232 (30 November 2011). 13 Equity Aviation v SATAWU (478/09) supra note 12 at 4-6. 14 Equity Aviation v SATAWU (478/09) supra note 12 at 6-7.

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would also necessitate a separate referral of the dispute for conciliation. The majority court

considered this premise in light of the purpose of s 64(1)(a), which is to ensure orderly collective

bargaining. The purpose of s 64(1) was merely to ensure that there was a referral in order to

ensure a lawful strike, it did not intend to require the indication of the identity of the parties.

Once the union had referred the matter for conciliation then another referral of the same dispute

by non-represented employees would be futile.15 The reason for this decision was that the issue

in dispute affected both the represented employees and non-represented employees. When the

matter was referred for conciliation, the union represented the interests of both represented and

non-represented employees. Therefore, once the majority union had referred the dispute and was

unsuccessful, then non-represented employees were entitled to strike along with the represented

employees.16 The majority court held that there was no rationale to draw a distinction between

categories of workers as if legislature intended this to be the case then it would have done so.

The employer is entitled to notice of intention to strike but not to the identity of the individuals.17

The crucial question in Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers

Union & Others18 which the SCA had to decide on was whether the unrepresented employees

were required to submit a separate notice of their intention to strike or whether the notice

submitted by the union was sufficient to include the unrepresented employees that would

ultimately render their participation in the strike as being lawful.19 In the SCA, Lewis JA

considered the two chief arguments made by the respondents in the LAC. The first argument

which was presented by the respondents was that s 64(1)(b) did not require more than one notice.

In the majority decision, Khampepe ADJP agreed with this argument and held that to confer any

further requirements into s 64(1)(b) that legislature has not expressly included would contradict

labour law jurisprudence. Furthermore, it would be overly formal which would negate the

simplistic framework of dispute resolution. This would be contrary to the objectives of the

LRA.20

15 Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union & others supra note 12 at 2898E. 16 Equity Aviation Services supra note 12 at 2898F, Chemical Energy Paper Printing Wood & Allied Workers Union & others v CTP Ltd & another (2013) 34 ILJ 1966 (LC). 17 Equity Aviation Services supra note 12 at 2898I. 18 Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union & others (2011) 32 ILJ 2894 (SCA). 19 Equity Aviation Services supra note 18 at 2895C. 20 Equity Aviation Services supra note 18 at 2898G-I.

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Davis JA proffered another line of reasoning when he concurred with Khampepe ADJP in his

judgment by stating that if “a significant group of workers” provide notice of their intention to

strike, then it would ensure satisfactory compliance with the implementation of organised

industrial relations.21 Zondo JP in the dissenting judgment held that this decision was entirely

incorrect and would lead to immense uncertainty within the law. Zondo JP reasoned that this

could not suffice as a sound justification because the term ‘significant group’ would mean that if

an insignificant group of the employees provided the notice first then a further notice would be

required by a significant group of employees.22 Consequently, if a significant group of

employees provided notice then it would not necessitate those who are form part of an

insignificant group of employees to provide separate notices.23 The SCA agreed with the

decision of Zondo JP in this regard as Lewis JP held that this was an illogical rationalisation of

what s 64(1)(b) requires.24 Furthermore, it is submitted that the conclusion reached by Davis JA

is invalidated by the first argument of Khampepe ADJP which states that labour law

jurisprudence would be undermined if you include further requirements which legislature had not

expressly included.25 The LRA in s 64(1)(b) does not make mention of any term regarding a

“significant group of people,” therefore, to infer such a term would be contrary to labour law

jurisprudence.26

The second argument raised by the respondents in the LAC was that requiring non-represented

employees to furnish separate notices would be a limitation of the right to strike without

justification.27 The decision held by Khampepe ADJP in regard to the respondents’ argument

pertained to a strict interpretation of the right to strike in accordance to leading cases which

compelled the interpretation of the right to strike to be construed without importing implicit

limitations that were not expressly conferred by legislature.28 The SCA disagreed with this

21 Equity Aviation Services supra note 18 at 2900D-I. 22 Equity Aviation Services supra note 18 at 2900D-I. 23 Equity Aviation Services supra note 18 at 2900D-I. 24 Equity Aviation Services supra note 18 at 2900D-I. 25 Equity Aviation Services supra note 18 at 2898G-I. 26 Equity Aviation Services supra note 18 at 2898E. 27 Equity Aviation Services supra note 18 at 2902C. 28 S v Zuma & others 1995 (2) SA 642 (CC), Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC).

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decision and held that this requirement does not affect the enforcement of the right, but rather

how the right is exercised. It was merely a procedural requirement that is required to render the

strike lawful.29

The SCA considered the argument raised by the employer in the LAC. Equity Aviation averred

that the majority decision did not appreciate the difference between s 64(1)(a) which necessitated

negotiations between the parties to allow for a period of cooling off and s 64(1)(b) which allows

for the employer to prepare for the strike.30 If this requirement were undermined then the

employer would not be able to determine the magnitude, intensity and the actual focus of the

strike. This would defeat the entire purpose of a strike as the employer would not be able to

make an informed decision to accede to the employees' demands.31 Furthermore, an employer

would not have knowledge of whether it should take adequate steps to protect the business or to

make pre-strike regulatory decisions as well as necessary health and safety precautions that may

arise during the strike.32 The union argued that due to the context that collective bargaining takes

place in, Equity Aviation would have been aware of the magnitude of the strike and would have

been able to prepare for it.33 However, this was not the case as Equity Aviation had made

inquiries regarding the participants of the strike and it was informed that the strike would only

involve union members. Thus, it had made preparations based on this knowledge.34 The court

has to determine whether the purpose of s 64 was frustrated as was illustrated in Fidelity Guards

Holdings (Pty) Ltd v Professional Transport Workers Union & others (1).35 The court on appeal

dealt with non-compliance with s 64(1)(b). However, the court pointed out that there was no

argument that the non-compliance in any way frustrated the purposes of the LRA. Therefore,

reliance on the non-compliance failed on appeal.36

29 Equity Aviation Services supra note 18 at 2898G-I 30 Equity Aviation Services supra note 18 at 2900F-G. 31 Equity Aviation Services supra note 18 at 2900H. 32 Equity Aviation Services supra note 18 at 2901A. 33 Equity Aviation Services supra note 18 at 2901E-G. 34 Equity Aviation Services supra note 18 at 2901E-G. 35 Fidelity Gaurds Holdings (Pty) Ltd v Professional Transport Workers Union & others (1) (1998) 20 ILJ 260 (LAC). 36 Fidelity Gaurds Holdings supra note 34 at 269D-F.

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Zondo JP took the factors which were presented by Equity Aviation into account when he

handed down the dissenting judgment that separate notices were required from non-represented

employees. The SCA agreed with the dissenting judgment,37 and added a fifth purpose that

providing a separate notice would protect the non-represented employees. Lewis JA was of the

opinion that if all employees complied with the procedural requirements of the LRA then their

conduct would be protected under the LRA. Therefore, it is in the best interests of all employees

that an employer receive a notice of intention to strike by all its employees who intend to strike.38

The SCA further approved Zondo JP’s interpretation of s 64(1)(b) who relied on labour law

authors who claim that as soon as the procedural requirements for a valid strike have been

fulfilled, namely that the matter has been referred for conciliation and the union has provided the

employer with the notice of its intention to strike then the union is at liberty to call out all its

members to engage in strike action, non-represented employees may also join in the strike

provided that they furnish separate notice of their intention to strike.39 The SCA and Zondo JA

were of the opinion that not to do so would result in disorderly collective bargaining. The SCA

accordingly set the decision of the LAC aside.40

The SCA’s judgment and the dissenting decision of Zondo JP in the LAC fall in line with the

conclusion reached by Froneman DJP in Ceramic Industries Ltd t/a Betta Sanitary Ware v

National Construction and Allied Workers Union.41 The LAC held that s 64(1)(b) has to be

interpreted to advance the objectives of the LRA, one of which is to ensure orderly collective

bargaining. The specific purpose of s 64(1)(b) gives effect to the objective of the LRA as this

section is designed to ensure that the employer is aware of the strike so that he can prepare for it.

The objective of the LRA and the purpose of s 64(1)(b) would be weakened and made ineffective

if employers were not informed as to the exact terms of the strike.42 There are two ways in which

orderly collective bargaining would be damaged by not informing the employer of the exact

extent that the strike would take.43 Firstly, the employer requires this information so that he can

37 Equity Aviation Services supra note 18 at 2901A. 38 Equity Aviation Services supra note 18 at 2899E-F. 39 Equity Aviation Services supra note 18 at 2902E-F. 40 Equity Aviation Services supra note 18 at 2902G-H. 41 Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction and Allied Workers Union [1997] 6 BLLR 687 (LAC). 42 Ceramic Industries Ltd t/a Betta Sanitary Ware supra note 41 at 702. 43 Ceramic Industries Ltd t/a Betta Sanitary Ware supra note 41 at 701-702.

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decide whether it is more reasonable to accede to the employees demand rather than allowing the

strike to commence. The underlying purpose of a strike is to utilise the threat of economic harm

to the employer’s business to allow the employer the opportunity to consent to the employees

demands.44

Secondly, separate notices from non-represented employees would enable an employer to protect

the interests of the business when the actual strike commences as prior knowledge regarding how

many employees will be participating in the strike will indicate the extent of the strike and thus

allow the employer to plan ahead based on that knowledge.45 These are pertinent issues which

are imperative in providing the employer with sufficient information to make informed decisions

especially within the South African context given the spike in violent strikes that affect the safety

of non-strikers and the general public.46 One can only implement measures to prevent harmful

and dangerous occurrences if they can foresee that such harm or danger will occur.47 An

employer cannot be expected to safeguard against severe financial loss or potential danger if it is

unaware of the severity that the strike would inflict.48 This is a grave concern as if there are

insufficient measures taken against potential harm then the damage to the business and society at

large would be colossal.49

However, the in SA Transport & Allied Workers Union & others v Moloto No & another,50 the

Constitutional Court (CC) ruled against the decision in Equity Aviation supra, thus establishing a

new line of precedent. As a result of failed negotiations pertaining to wages the union obtained a

certificate that the dispute remained unresolved.51 The union which represented the majority of

Equity’s workforce issued a notice to the employer indicating their intention to embark on a

strike. Similarly to Equity Aviation supra, non-members of the trade union also engaged in the

44 Stuttafords v SACTWU [2001] 1 BLLR 47 (LAC). 45 N Smit & E Fourie ‘Equity Aviation v SATAWU (478/09) [2011] ZASCA 232 (30 November 2011): The issue of separate strike notices where employees are not members of the trade union’ 2012 De Jure 432. 46 Tiger Food Brands Ltd t/a Albany Bakeries v Levy NO & others (2007) 28 ILJ 1827 (LC). 47 SATAWU & another v Garvas & others 2013 (1) SA 83 (LC). 48 Algoa Bus Company v SATAWU & others [2010] 2 BLLR 149 (LC). 49 A Sedat The effects of strikes in the South African gold mining industry on shareholder value (unpublished LLM thesis, University of the Witwatersrand, 2013) 3. 50 SA Transport & Allied Workers Union & others v Moloto No & another (2012) 33 ILJ 2549 (CC). 51 SA Transport & Allied Workers Union supra note 50 at 2250[2]-[4].

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strike. These employees were then dismissed because of their participation in an unprotected

strike.52

The CC was called upon to adjudicate on two arguments. The argument presented by the

applicants pertained to the language expressed by the legislature which provided for a strict

interpretation of the provision of s 64(1)(b) in light of the Constitution and the purpose of the

LRA.53 The applicants claimed that to allow any further reading into the provision would entail

that the employer is given an unfair advantage over the employees who are already placed in an

inferior position within the employment field.54 The argument presented by the respondents

pertained to a purposive interpretation of s 64(1)(b) which claimed that in order for the provision

to contain any purpose at all, notices of the intended strike had to be given by all employees who

intended to strike.55

The majority in which Yacoob ADCJ, Froneman J, Nkabinde J, Cameron J and Van der

Westhuizen J concurred held in favour of the applicants. The majority considered two primary

aspects that followed from the factual context of the case as well as the principle of constitutional

jurisprudence of statutes. The majority took cognisance of the recognition agreement that was

concluded by the union and Equity Aviation which recognised the union as a bargaining agent

which represented all the employees employed by Equity Aviation. Furthermore, there was also

an agency agreement in place which permitted the union to engage in negotiations regarding

wages on behalf of both non-union employees and members of the union.56 The CC stated that it

is in this context that the notice to strike should be interpreted, as from the beginning of

negotiations both members of the union as well as non-union members were represented by the

union regarding this wage dispute.57 Equity Aviation could not reasonably have believed that the

strike notice did not include non-union employees from the facts of the case.58

The majority further considered was that the right to strike was a Constitutional right which

afforded it significant value. Consequently, there should not be any implicit requirement read

52 SA Transport & Allied Workers Union supra note 50 at 2250[2]-[4]. 53 SA Transport & Allied Workers Union supra note 50 at 2558D. 54 SA Transport & Allied Workers Union supra note 50 at 2558E-F. 55 SA Transport & Allied Workers Union supra note 50 at 2558G-H. 56 SA Transport & Allied Workers Union & others v Moloto supra note 50 at 2550H-I. 57 SA Transport & Allied Workers Union & others v Moloto supra note 50 at 2550J. 58 SA Transport & Allied Workers Union & others v Moloto supra note 50 at 2551A.

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into the right without proper justification.59 The majority held that there was no proper

justification to read an implicit requirement into the right, as the LRA only envisaged one strike

in respect of one dispute, thus, there was no rationale or language from statute to assume that

there should be two notices given for one strike.60 In Moloto supra the court held that the LRA in

s 64 has explicitly stated the procedural requirements that have to be met for the protection of a

strike and that once these requirements have been satisfied there does not have to be any further

procedures conferred upon it.61 Yacoob ADCJ, Froneman J, Nkabinde J, Cameron J and Van der

Westhuizen J further held that the LRA sought to regulate the right to strike thus there does not

have to be any further justification or additional limitations to these explicit limitations which are

necessary for the effective regulation of the right.62 Therefore, it can be deduced that the court in

Moloto supra has effectively illustrated that the court is unwilling to read limitations into

fundamental rights enshrined by the Constitution without adequate justification.63

The majority court further reasoned that in terms of the principle of constitutional jurisprudence

if there was more than one interpretation of the statutory provision, such interpretation must

conform to the spirit, purport and objective of the Bill of Rights.64 The CC considered that there

were two consequences which would give effect to the spirit, purport and objectives of the Bill

of Rights from interpreting s 64(1)(b) to mean only what was expressly enshrined by

legislature.65

Firstly, a less intrusive interpretation would ensure greater certainty in enforcing the right to

strike, as reading an implicit requirement would require more information in the notice and

would lead to further implicit requirements being read into the provision.66 If this occurred there

would be great uncertainty in enforcing strikes as employees would not be able to follow a clear

guideline on protected strikes. This would negate the purpose of the LRA which endorses orderly

collective bargaining.67 It is imperative to note that the majority’s reasoning regarding this first

point on promoting orderly collective bargaining vastly contrasts to the reasoning proffered by 59 SA Transport & Allied Workers Union & others v Moloto supra note 50 at 2550F-G. 60 SA Transport & Allied Workers Union & others v Moloto supra note 50 at 2551C. 61 CWIU v Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC). 62 New National Party of SA v Government of the Republic of SA & others [1999] 5 BCLR 489 (CC). 63 Islamic Unity Convention v Independent Broadcasting Authority [2002] 5 BLLR 433 (CC). 64 SA Transport & Allied Workers Union & others v Moloto No & another supra note 50 at 2551C-D. 65 SA Transport & Allied Workers Union & others v Moloto No & another supra note 50 at 2551C-D. 66 SA Transport & Allied Workers Union & others v Moloto No supra note 50 at 2551E. 67 SA Transport & Allied Workers Union & others v Moloto No supra note 50 at 2551F.

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the SCA in Equity Aviation supra.68 The court in Equity Aviation supra concluded that orderly

collective bargaining would be achieved if there was an implicit reading into the notice to strike.

The reasoning of the SCA was more in line with how the employer would perceive the strike

notice in order to prepare for the power play that was to commence.69 In Equity Aviation supra,

the SCA rationalised that the enforcement of orderly dispute resolution would ensure that

employers are not caught off guard and that a strike does not proceed to an extent that is

uncontrollable, as this would be contrary to the intention of the LRA.70 In Moloto supra the

majority’s reasoning was in line with the effect that the reading into of implicit requirements

would have on the employees. In this regard the majority were of the view that reading into

further requirements would make the enforcement of strike indeterminate as the employer would

claim that further requirements be read into the provision.71 This would also erode the very

essence of orderly collective bargaining which is to balance the unequal power that exists

between the employer and employee.72

Secondly, a less intrusive interpretation of the right to strike would enforce the underlying

rationale for industrial action which is to balance the social and economic power within the

workplace.73 If more information was required other than that which legislature expressed, the

position of the employer would be further strengthened and contradict the purpose of the

Constitution which is to level the playing field that has already been tilted in favour of the

employer.74 The employer has possessed economic autonomy over workers for centuries.75

Workers suffer from an inherent imbalance of power in the workplace as a result of the

employer’s superior position of enforcing wages and employment conditions and workers have

no option but to accept these conditions if he or she is in need of a job.76 Therefore, by not

interpreting further implicit limitations employees would be able to level this imbalance of

power that employers have possessed through strike action which would bring pressure upon the

68 Smit & Fourie (note 45 above; 430). 69 SA Transport & Allied Workers Union & others v Moloto supra note 50 at 2558H-I. 70 D du Toit & R Ronnie ‘The necessary evolution of strike law’ 2012 Acta Juridica 195. 71 Poswa v Member of the Executive Council Responsible for Economic Affairs, Environment & Tourism, Eastern Cape 2001 (3) SA 582 (SCA). 72 A P Molusi ‘The Constitutional duty to engage in collective bargaining: notes’ (2010) 31(1) Obiter 156. 73 SA Transport & Allied Workers Union & others v Moloto No & another supra note 50 at 2551E-F. 74 SA Transport & Allied Workers Union & others v Moloto supra note 50 at 2551G. 75 S Gelb ‘Inequality in South Africa, causes and responses conference Somerset West 13-15 October 2004, 18. 76 B E Kaufman ‘Labor’s inequality of bargaining power: Changes over time and implications for public policy’ (1989) 10(3) Journal of Labor Research 286.

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dominant elite and compel employers to accede to the demands of employees.77 Furthermore,

non-unionised employees would feel the impact of an additional strike notice much more

severely that employees who are represented by a union, as this would be an additional

requirement only non-unionised employees had to comply with.78

In terms of the notice, if the employees want to serve notice on their employer who is part of the

bargaining council and the dispute pertains to the collective agreement that has not yet been

concluded by the particular bargaining council, then notice merely has to be served on the

secretary of the bargaining council.79 The prescribed period that notice should be given varies

depending on who the employer is. If the employer is a private body then the required notice

period is 48 hours’.80 However, where the employer is the state, then there must be at least seven

days’ notice given to the employer of the intended strike.81 In City of Matlosana v SA Local

Government Bargaining Council,82 the court elaborated on the necessity of seven days’ notice

required when the employer is the state. The court highlighted that the State is responsible for

supplying essential and basic needs to the general public. These services are critical in

dispensing services to provide for the needs of the public. It is for this reason that the employer

being the State requires additional time to decrease any interruption that may occur as a result of

the intended strike.83 The notice period is not the only requirement that the notice needs to meet.

The notice does not have to indicate the exact time which the strike will commence.84

Additionally, the strike does not have to commence at the time specified in the notice.85 The

purpose of this section is to ensure that the employer is aware of when the strike will take place 77 P N Singh & N Kumar Employee Relations Management (2011) 89. 78 M A Chicktay ‘Employment, the economy & growth: The implications for labour law Conference’ Sandton Convention Centre, Johannesburg 30 July-1 August 2013 17. 79 The LRA; s 64(1)(b)(i), Tiger Wheels Babelegi (Pty) Ltd t/a TSW International v National Union of Metalworkers of SA & others (1999) 20 ILJ 677 (LC) at 678F-J. 80 The LRA; s 64(1)(b). 81 M O Samuel ‘The mineworkers’ unprocedural strike: setting the path for redefining collective bargaining practice in South Africa’ (2013) 11 Journal of Contemporary Management 246. 82 City of Matlosana v SA Local Government Bargaining Council (2009) 30 ILJ 1293, see also Mcosini v Mancotywa & another (1998) 19 ILJ 1413 (TK), SA Agricultural Plantation & Allied Workers Union & others v Premier of the Eastern Cape & others (1997) 18 ILJ 1317 (LC). 83 City of Matlosana v SA Local Government Bargaining Council supra note 82 at 297F-G. 84 Country Fair Foods (A Division of Astral Operations Ltd) v Hotel Liquor Catering Commercial & Allied Workers Union & others (2006) 27 ILJ 348 (LC), Western Platinum Ltd v National Union of Mineworkers and Others (2000) 21 ILJ 2502 (LC). 85 Tiger Wheels Babelegi (Pty) Ltd t/a TSW International v National Union of Metalworkers of SA & others (1999) 20 ILJ 677 (LC), Public Servants Association of SA v Minister of Justice & Constitutional Development & others (2001) 22 ILJ 2303 (LC).

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to ensure that he can minimise any disruption caused by the strike or to give the employer the

opportunity to accede to the employees’ demand.86 Even though much emphasis is placed on

informing the employer when the strike is to commence, the employer does not need to be

informed as to the complete details regarding the time and duration.87 It follows from the

discussion of these two paramount cases that the LRA places clear and precise procedures which

must be followed for the protection of a strike. However, there are circumstances which the LRA

identifies as necessary to exclude the requirements prescribed by statute.88

5.3. WHEN STATUTORY PROCEDURE DOES NOT HAVE TO BE FOLLOWED

The LRA acknowledges that there are instances where employees may dispense with the

requirements for statutory procedure and may still be afforded the protection of the strike. The

first instance that the LRA envisages is if the collective agreement which binds the parties

specifies that the dispute in interest is one that employees may not strike over, then such a strike

will not be afforded protection in terms of the LRA.89 In Columbus Joint Venture t/a Columbus

Stainless Steel v NUMSA,90 the Labour Court held that there are essentially two available means

to guarantee the protection of a strike. Firstly, employees are at liberty to follow the statutory

procedure indicated by s 64 of the LRA and secondly, employees may adhere to the requirements

stipulated by the collective agreement. It is a choice of what the intended strikers would like to

follow.91 Therefore, it follows that a collective agreement may override provisions of the LRA as

was previously discussed.92 If strikers want the protection of the law, they merely need to follow

the collective agreement or the provision stipulated in s 64.

The second instance which the LRA allows for dispensing with statutory procedure is when

parties are members of a particular bargaining council and that council’s constitution prescribes a

86 Transnet Ltd v SATAWU [2011] 11 BLLR 1123 (LC) at 12. 87 Equity Aviation Services (Pty) Ltd v SATAWU & others (2009) 30 ILJ 1997 (LAC), Country Fair Foods (A Division of Astral Operations Ltd v Hotel Liquor Catering Commercial & Allied Workers Union & others (2006) 27 ILJ 348 (LC), Transnet Ltd v SATAWU [2011] 11 BLLR 1123 (LC). 88 M M Mamabolo The dismissal of unprotected strikers and the audi alteram partem rule (unpublished LLM thesis, University of the North West, 2006) 4. 89 The LRA; s 65(1)(b), Country Fair Foods (Pty) Ltd v FAWU & others [2001] 5 BLLR 494 (LAC), Vista University v Botha & others [1997] 5 BLLR 614 (LC), South African National Security Employers Association v TGWU & others (1) [1998] 4 BLLR 364 (LAC). 90 Columbus Joint Venture t/a Columbus Stainless Steel v NUMSA [1997] 10 BLLR 1292 (LC). 91 Columbus Joint Venture t/a Columbus Stainless Steel v NUMSA supra note 90 at 1294, North East Cape Forests v SAADAWU & others [1997] 5 BLLR 578 (LC). 92 Vista University v Botha & others [1997] 5 BLLR 614 (LC).

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process for the resolution of the dispute that has arisen between the parties.93 The employees in

such an instance are obliged to follow that process.94 The third instance that the LRA envisages

is when an employer makes a unilateral amendment or threatens to make such an amendment to

the conditions of employment and consequently refuses to withdraw from implementing the

amendments.95 A further instance that the LRA permits for the non-compliance of statutory

requirements is when the strike is in response to a lock-out that is unlawfully imposed by the

employer.96 The LRA allows the implementation of strike activity in these instances to promote

the right to strike and further the interests of justice to ensure that employees do not have to

adhere to strict rules when their employers are not willing to follow due process. However, the

interests of justice also ensure that there are certain situations which would result in detrimental

consequences if strikes did occur. It is for this reason that there are certain prohibitions on the

right to strike.97

5.4. THE PROHIBITIONS ON THE RIGHT TO STRIKE

There are essentially four instances when strike action will be prohibited.98 The first instance is

when parties conclude a collective agreement that specifically contain provisions which prohibit

the use of industrial action as a means of resolution over certain disputes.99 These provisions are

referred to as peace clauses whose enforcement would prohibit striking over certain disputes or

be an absolute ban on all strike activity.100 In Enforce Guarding (Pty) Ltd v National Security &

Unqualified Workers Union & others,101 the company proposed to make changes to the hours of

overtime in conformity with ministerial requirements. However, these changes were not in

93 The LRA; s 64(3)(a). 94 Security Services Employers Organization & others v SA Transport & Allied Workers Union & others (2006) 27 ILJ 1217 (LC), SANSEA v NUSOG [1997] 4 BLLR 486 (CCMA). 95 The LRA; s 64(3)(e). 96 The LRA; s 64(3)(c). 97 Samuel (note 81 above; 246). 98 The LRA; s 65. 99 The LRA; s 65(1)(a), Ford Motor Company of SA (Pty) Ltd v NUMSA & others (P32/07), 08/11/2007, unreported, Vista University v Botha & others (1997) 18 ILJ 1040 (LC), National Union of Metalworkers of SA & others v Highveld Steel & Vanadium (2002) 23 ILJ 895 (LAC), National Union of Metalworkers of SA & others v Hendor Mining Supplies (a division of MarschalkBeleggings (Pty) Ltd (2003) 24 ILJ 2171 (LC), Hlope v Transkei Development Corporation Ltd (1994) 15 ILJ 207 (ICTK). 100 A Jacobs Labour Law in the Netherlands (2004) 157, C Barrow Industrial Relations Law 2nded (2002) 160, SA Federation of Civil Engineering Contractors on behalf of its members v National Union of Mineworkers & another (2010) 31 ILJ 426 (LC). 101 Enforce Guarding (Pty) Ltd v National Security & Unqualified Workers Union & others (2001) 22 ILJ 2457 (LC).

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excess of the maximum hours as stipulated by the Basic Conditions of Employment Act 75 of

1997 (hereinafter referred to as the BCEA). The dispute pertained to whether the collective

agreement prohibited strike action as the agreement stipulated that only overtime that is less than

the maximum hours of overtime will be dealt with according to the BCEA.102 The LC as per

Pillay J held that the collective agreement did not prohibit the strike for two reasons. Firstly, the

company’s proposed amendment did not exceed the 10 hours’ overtime stipulated by the BCEA.

Therefore the dispute fell within the ambit of the collective agreement and was a matter that was

subject to negotiation.103 Secondly, in terms of the contention that the matter had to be addressed

at central level and not plant level, the court further held that there was no bargaining council in

place as yet and no mechanisms to resolve the dispute had been set. Thus, the union was entitled

to pursue the interests of its members through industrial action. Hence, the collective agreement

did not prohibit the strike on this basis as well.104

However, it is not only a collective agreement that may prohibit strike action, but rather there are

further instances where the constitution of a bargaining council may prohibit strike action.105 The

leading case which has developed this area of the law is that of SA Clothing & Textile Workers

Union v Yarntex (Pty) Ltd t/a Bertrand Group.106 The employees of Yarntex engaged in

unprotected strikes during the period of July and December of 2007. Consequently, such

employees were issued with warnings that explicitly informed them that if they engaged in

similar conduct during the next 12 months they would be dismissed.107 During this period the

union reached a deadlock regarding wages and a dispute was declared. The provisions of the

National Textile Bargaining Council (NTBC) specifically stated that all negotiations at plant

level were prohibited. Therefore, all lock outs and strikes at this level were also prohibited. The

company repeatedly reminded the union that this prohibition would render strikes unlawful,

102 Enforce Guarding (Pty) Ltd v National Security & Unqualified Workers supra note 100 at 2457E. 103 Enforce Guarding (Pty) Ltd v National Security & Unqualified Workers supra note 100 at 2457H. 104 Enforce Guarding (Pty) Ltd v National Security & Unqualified Workers Union & others supra note 100 at 2457H. 105 A Young, K van Niekerk & S Mogtlane Juta’s Manual of Nursing (2003) 73. 106 SA Clothing & Textile Workers Union v Yarntex (Pty) Ltd t/a Bertrand Group (2010) 31 ILJ 2986 (LC), Food and Allied Workers Union (FAWU) V TSB Sugar RSA Ltd & others [2013] 10 BLLR 973 (LAC), Transport & Allied Workers Union of SA (TAWUSA) & others v Unitrans Fuel & Chemical (Pty) Ltd (2013) 34 ILJ 1785 (LC). 107 SA Clothing & Textile Workers Union v Yarntex supra note 105 at 2986G-H.

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however, this warning was ignored and in September 2008 the majority of the workers engaged

in the strike.108

There are various factors that the court took into account in deciding this case; however,

emphasis will only be placed on the issue pertaining to the NTBC’s constitution.109 As a result of

non-compliance by the employees, their dismissal was effected without a hearing. The union

referred the matter to the LC stating that the employees’ dismissals were both substantively and

procedurally unfair. The court reasoned that the strikers were made aware on numerous

occasions that the constitution of the NTBC prohibited strike action at plant level. In this regard

the union had a responsibility to comply with the rules of the bargaining council.110 The court

stated that this was not a violation of the right to strike as this right is not an absolute right and is

therefore subject to s 36 of the Constitution. The strikers had engaged in repeated misconduct

and had failed to make representations against their dismissal. Therefore, the strikers had

forfeited their right to hold such a hearing. The court accordingly held that the dismissal of the

strikers were not substantively or procedurally unfair.111

This matter was taken on appeal where the LAC upheld the decision of the LC.112 On appeal the

court reasoned that the constitution of the NTBC served as a collective agreement as this

constitution specified how disagreements should be resolved and further explained the everyday

procedure of the NTBC. The parties specifically agreed that negotiations regarding wages and

conditions of employment were to be taken at subsector levels, thus, if disputes arose at this level

then the employees would be entitled to embark on strike action as a means of resolution.113 The

LRA entitles parties to agree on the bargaining level, as well as the subjects who are involved at

such levels.114 Hence, the fact that the constitution explicitly stated that negotiations could only

take place at a specific level automatically ousts negotiations at any other level including the

remedy of industrial action that would follow failed negotiations.115 The court concluded that the

effect of the constitution of NTBC was tantamount to the content and purpose of a collective 108 SA Clothing & Textile Workers Union v Yarntex supra note 105 at 2986I-J. 109 SA Clothing & Textile Workers Union v Yarntex supra note 106 at 2987A. 110 SA Clothing & Textile Workers Union v Yarntex supra note 106 at 2987D-F. 111 SA Clothing & Textile Workers Union v Yarntex supra note 106 at 2987G-H. 112 SA Clothing & Textile Workers Union v Yarntex (Pty) Ltd t/a Bertrand Group (2013) 34 ILJ 2199 (LAC). 113 SA Clothing & Textile Workers Union v Yarntex (Pty) Ltd t/a Bertrand Group supra note 112 at 2210 [64]-[66]. 114 M Sewerynski ‘Representation of employees in collective bargaining within the firm’ (2007) 11(3) Electronic Journal of Comparative Law 4. 115 SA Clothing & Textile Workers Union v Yarntex supra note 112 at 2210 [65].

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agreement. Therefore, if strikes could be excluded in a collective agreement then it would follow

that strikes could also be excluded in a bargaining council’s constitution.116

It is submitted that the case of Yarntex supra effectively conveys an essential point, which is that

the right to strike is regarded as a fundamental right enshrined by the constitution, thus greater

significance is conferred upon this right.117 Consequently, any limitations must be narrowly

interpreted and resorted to only when the circumstances necessitate that in doing so it would

prevent lesser harm.118 The limitation of the right ultimately seeks to prevent conflict between

other rights.119 In Yarntex supra, the lesser harm that the NTBC sought to prevent was that if

industrial action took place at plant level then SATAWU would have been entitled to initiate

industrial action against only one employer to the omission of the other employers. This would

have collapsed the bargaining process and negated plant-level bargaining.120 This in turn would

have conflicted with the purpose and objectives of the LRA which seeks to ensure orderly

collective bargaining.121

A second limitation that prohibits industrial action is if the issue in dispute is classified as a

rights dispute, because the correct procedure for resolution of rights disputes is through

arbitration and adjudication.122 There is a clear distinction made by the LRA between disputes of

interest and disputes of rights, as only interest disputes may entail the use of industrial action.123

The LRA in s 65(1)(c) clearly narrows those issues which are compelled to be referred to for

arbitration or adjudication.124 In Coin Security Group (Pty) Ltd v Adams & others,125 the court

held that when determining whether an issue is one over which employees may engage in strike

action, the form in which the dispute is presented does not distinguish a dispute. It is the nature

116 SA Clothing & Textile Workers Union v Yarntex supra note 112 at 2210 [68]. 117 K J Selala ‘The right to strike and the future of collective bargaining in South Africa: An exploratory analysis’ (2014) 3(5) International Journal of Social Sciences 116. 118 S v Zuma & others 1995 (2) SA 642 (CC). 119 M G Masitsa ‘Teacher’s right to strike vis-à-vis learner’s right to education- Justice for one is an injustice for the other’ (2013) 13(4) Interim: Interdisciplinary Journal 20. 120 SA Clothing & Textile Workers Union v Yarntex supra note 112 at 2210 [67]. 121 S Vettori ‘The Labour Relations Act 66 of 1995 and the protection of trade unions’ (2005) 17 SA Merc LJ 304. 122 L Gordon-Davis & P Cumberledge The Hospitality Industry Handbook on Legal Requirements for Hospitality Business 3rded (2013) 292. 123 Selala (note 117 above;) 119. 124 Mawethu Civils (Pty) Ltd v National Union of Mineworkers (2013) 34 ILJ 2624 (LC). 125 Coin Security Group (Pty) Ltd v Adams & others [2000] 4 BLLR 371 (LAC).

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of the dispute that distinguishes the type of dispute.126 Consequently, employers may not simply

label a dispute as one that cannot be strikeable just to avoid a strike action. Neither can

employees label a dispute as an interest dispute simply to engage in strike action. In Ceramic

Industries Limited t/a Betta Sanitary Ware v NCBAWU & others,127 the court affirmed the

necessity of the procedural and substantive requirements which have to be adhered to in order for

a strike to be protected under the LRA. In terms of procedure, employees are obliged to follow

the process as stipulated in s 64 of the LRA. In terms of the substantive limitation that is placed

on the right to strike, one such limitation is that issues which are subject to arbitration in terms of

the LRA cannot be resolved through industrial action.128

This is a vastly different position compared to that which governed substantive limitations under

the old LRA where a strike could follow due procedure and still be deemed unfair in terms of its

unfair labour practice provision.129 However, under the current LRA the substantive limitations

revolve around the nature of the dispute and whether it is subject to resolution by industrial

action.130 Furthermore, these limitations are only enforceable in terms of the LRA. This means

that strikes will still retain their protection even if referred for arbitration under another

legislation. In such circumstances, the nature of the dispute would not be relevant as it would be

authorised by another Act.131

The LRA in terms of s 64 limits the protection of strike action further by stipulating that a strike

would lose its protection once the dispute over which the strike was called has been resolved.132

In Afrox Ltd v SA Chemical Workers Union & others (2)133 the court dealt with the issue of when

a strike loses its protection. The dispute arose over the employees’ refusal to work staggered

shifts in its Pretoria site. The employees then engaged in industrial action over a demand in

relation to the dispute. The strike ended in the dismissal of the employees as well as the

126 Coin Security Group (Pty) Ltd v Adams & others supra note 125 at 15, NUMSA & others v Highveld Steel & Vanadium Corporation Ltd [2002] 1 BLLR 13 (LAC), Samancor Ltd v NUMSA & others (2000) 8 BLLR 956 (LC), MITUSA & others v Transnet Ltd & others [2002] 11 BLLR 1023 (LAC), Baderbop (Pty) Ltd v NUMSA & others [2002] 2 BLLR 139 (LAC). 127 Ceramic Industries Limited t/a Betta Sanitary Ware v NCBAWU & others [1997] 6 BLLR 698 (LAC). 128 Ceramic Industries Limited t/a Betta Sanitary Ware supra note 127 at 700F. 129 Ray’s Forge & Fabrication (Pty) Ltd v NUMSA & others (1989) 10 ILJ 762 (IC). 130 Ceramic Industries Limited t/a Betta Sanitary Ware supra note 127 at 703J. 131 TSI Holdings (Pty) Ltd & others v NUMSA & others [2004] 6 BLLR 600 (IC). 132 SACWU & others v Afrox Ltd [1997] 4 BLLR 382 (LC). 133 Afrox Ltd v SA Chemical Workers Union & others (2) (1997) 18 ILJ 406 (LC).

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abandonment of the employer’s unsuccessful attempts to transport the gas to its customers. As a

result of the employer’s inability to deliver its goods to its customers, Afrox enlisted the help of

contract workers. The contract workers themselves were not required to work staggered shifts

and thus the issue over staggered shifts was no longer in dispute.134

In terms of the court’s stance on the termination of a strike, the court stated that a strike can end

in two ways. The first way is if the strikers end their strike and unqualifiedly return to work.

Secondly, a strike can end when the grievance or dispute disappears. This could occur if the

employer consents to the strikers’ demands or if the dispute is resolved or if the grievance is

removed.135 It must be noted that the purpose of a strike within the framework of collective

bargaining is to resolve a dispute.136 Once there is an absence of a dispute, a strike loses its

purpose, thus the strike terminates. Once a strike ends, the protection it has been endowed also

terminates.137 It is submitted that the court’s reasoning in this regard is correct and adequately

reflects the intention of the LRA regarding strikes. The purpose of a strike as envisaged by the

LRA in s 213 is to pursue the resolution of a dispute or grievance. A strike in such an instance is

afforded protection provided it complies with the requirements of a lawful strike, which request

employees to engage in collective bargaining and provide 48 hours’ notice of their intention to

strike.138 If the dispute is resolved, as in this case when the employer enlisted the help of

contractors, then the strike no longer has a purpose. If a strike continues after the dispute has

been resolved then such a strike would be unlawful. It is submitted that the dismissal of the

employees was lawful as the employees engaged in an illegal strike and thus lost the protection

against dismissal during the strike. The moment the dispute was resolved, the strike terminated

as well as its protection.139

The third prohibition on strikes which is when there is an arbitration award, a determination

made by the minister or if the BCEA regulates the dispute in contention.140 The case of Afrox

134 Afrox Ltd v SA Chemical Workers Union & others supra note 133 at 408D-409D. 135 Afrox Ltd v SA Chemical Workers Union & others supra note 133 at 411A. 136 National Union of Mineworkers & others v Free State Consolidated Gold Mines (Operations) Ltd-President Steyn Mine; President Brand Mine; Freddies Mine 1996 (1) SA 422 (A), Masilela & others v Reinhart Transport (Pty) Ltd & others (2010) 31 ILJ 2942 (LC), Food & Allied Workers Union & others v Rainbow Chicken Farms (2000) 21 ILJ 615 (LC). 137 Afrox Ltd v SA Chemical Workers Union & others supra note 133 at 410A-B. 138 The LRA; s 65. T Healy ‘Employees should follow all strike procedures’ STAR 20 January 2010 at 4. 139 Afrox Ltd v SA Chemical Workers Union & others supra note 133 at 411A. 140 The LRA; s 65(3)(a).

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supra elucidates this pertinent prohibition in terms of the resolution for disputes concerning

dismissals. The employees in Afrox supra, after conceding that the dispute pertaining to the

staggered shifts had been resolved, continued to strike over the issue that their employment was

replaced by that of contract workers. In this regard, the court stated that strikers are not at liberty

to change the dispute over which they are striking. Furthermore, the dispute over their dismissals

was not subject to strike action according to the LRA. Disputes regarding dismissals are

categorised as rights disputes and as such have to be arbitrated or adjudicated and thereafter

referred to the LC.141

One of the most significant introductions of the LRA is that of the differentiation of rights

disputes and interests’ disputes.142 The intention of the LRA is quite clear in its reason for such

separation of disputes. Disputes of existing rights require resolution by a prescribed set of rules

which are implemented through arbitration or adjudication and the LC.143 This distinction is well

reasoned and has provided a number of cautionary regulations regarding strike action. In terms

of s 65(1)(c), employees may not strike over the reinstatement of dismissed employees. In such a

case, employees are compelled to resolve the grievance by way of arbitration. However, even

after this process has been exhausted employees may not engage in strike action as they would

be bound by an award, which prohibits strikes in pursuance of such a dispute.144 Furthermore, if

a dispute proceeds to the LC and has received an outcome, the outcome or determination is

regarded as a resolution to the dispute. Therefore, employees are not permitted to strike over the

issue as it is deemed to have been resolved.145

The court in this instance has affirmed that there is a difference between protected strikes and

unprotected strikes which are prohibited.146 Furthermore, the LC has identified that there are

those strikes that fall into neither of these categories. In Early Bird Farm (Pty) v Food & Allied

Workers Union & others,147 the court dealt with an issue of the middle ground which could

provide another category of industrial action. In Early Bird Farm supra the respondents were

dismissed from work for engaging in a strike. The matter was then referred to the LC. It was 141 Afrox Ltd v SA Chemical Workers Union & others supra note 133 at 407A-D. 142 M Vranken Death of Labour Law?: Comparative Perspectives (2009) 109. 143 R Blanpain Comparative Labour Law and Industrial Relations in Industrialized Market Economies (2007) 690. 144 The LRA; s 65(3)(a)(i). 145 T Ansay & E C Schneider Introduction to Turkish Business Law (2001) 137. 146 SAAPAW Free State & others v Fourie & Another [2007] 1 BLLR 67 (LC). 147 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others (2004) 25 ILJ 2135 (LAC).

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contended by the respondents that the dismissal was automatically unfair on the basis that they

had engaged in a lawful strike. Furthermore, the respondents contended that the dismissal even if

not found to be automatically unfair should be found to be unfair for having no reason to dismiss

the employees as well as being procedurally defective. The respondents not only sought their

reinstatement but also compensation.148 On appeal, the court dealt with three essential issues.

The first being of whether the court a quo was correct in deciding that the dismissal of the

respondents did not amount to an automatic unfair dismissal. Secondly, whether the court a quo

was correct in its decision that the dismissal was unfair and thirdly, that the dismissal was

procedurally unfair. The court on appeal looked at the first issue in determining the subsequent

answers to the second and third questions.149 In dealing with the first issue, the appeal court

decided that the respondents had engaged in a protected strike. The court’s reasoning was that

FAWU had included the respondents from the farm sector in its negotiations on wages when

deliberating on behalf of the employees from the processing plant.150

At all times FAWU had included the individual respondents in its negotiations as the wage

increase included the respondents. It was irrelevant to hold that the respondents were pursuing

their own demands because their demands were one and the same of the employees from the

processing plant.151 Furthermore, the respondents had also participated in the strike ballot and at

all times believed that they were party to the dispute. The dispute within the strike ballot was

whether the respondents were willing to strike for an increase; it did not at any time specify that

such an increase was only to be given to those employees within the processing plant.152 This is a

very critical point as there was no distinction made between the employees within the processing

plant and the farm sector. The employees acted as a collective before and during the strike.153

The appeal court highlighted that the demand which the respondents pursued was the same as

that of the employees in the processing plant regarding the increase of wages. Therefore, when

the dispute was referred to the CCMA, it was deemed to include the dispute of the respondents as

it was one and the same to that of the other employees. On this basis, the appeal court decided

148 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2138A-B. 149 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2146D-G. 150 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2146G. 151 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2149A-D. 152 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2146D-G. 153 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2146H-I.

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that the strike adhered to the requirements within s 64 and was thus a lawful strike.154 In arriving

at its decision, the court turned to the question of what the respondent’s position would have

been had they engaged in the strike on behalf of the employees at the processing plant.155 On this

particular point the applicant argued that the respondents were bound by a collective agreement

that required any dispute surrounding wages to be referred to conciliation, arbitration or

adjudication. Furthermore, they contended that there had been no dispute to begin with because

the respondents had accepted the wage increase.156 In determining whether the respondents were

bound by the collective agreement the court looked at the requirement under s 23(1)(d) of the

LRA, which requires that individuals be mentioned in the agreement. This, however, was not

done. Therefore, the court reasoned that the respondents were not bound by the collective

agreement on this basis.157

The LC further considered the issue of whether employees belonging to a different bargaining

unit or different part of the company may engage in strike action in support of fellow employees

belonging to another bargaining unit without having referred the matter again for conciliation.

The court based its decision in Afrox supra and Plascon supra, where the principle derived was

that employees who are part of the same bargaining council and the same employer are not

obliged to refer the same dispute which fellow employees are striking over if that dispute has

already been referred for conciliation. Such employees are at liberty to join the strike as the

strike has already been afforded protection.158

The appeal court in Afrox supra arrived at the decision that even if the respondents were striking

in support of the employees from the processing plant, such strike action would have still been

deemed lawful as the dispute had already been referred to for conciliation.159 It is submitted that

this decision is correct. The court effectively illustrates that the purpose of s 65 of the LRA is to

ensure that the framework for dispute resolution is exhausted before employees engage in strike

action. By highlighting this point the court emphasises that as long as the requirements of this

154 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2150A-B. 155 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2150J. 156 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2151A-B. 157 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2152A. 158 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2154D-F. 159 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2154G-I.

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section are met, then the same dispute need not be referred for conciliation a second time.160 The

section is meant to ensure that strike action is a last resort and is not meant to prevent employees

from utilising it as a form of resolution when conciliation is unsuccessful.161 The case of Early

Bird Farm supra clearly elucidates that the court must be satisfied that the dispute in issue has

been referred for conciliation and still remains unresolved as a dispute, as resolved disputes

cannot be an issue over which employees strike.162

The fourth prohibition on the right to strike is when employees are employed within essential

and maintenance services. An essential service is one whose “interruption … endangers the life,

personal safety or health of the whole or any part of the population”.163 This definition includes

the SA Police Service and the Parliamentary Service.164 The LRA has further provided for an

Essential Services Committee to investigate whether a service can be classified as an essential

service.165 This prohibition on the right to strike does not require justification and has been

numerously enforced by the judiciary.166 In SA Police Service (SAPS) v Police & Prisons Civil

Rights Union & another (POPCRU),167 the CC was called upon for the first time to adjudicate on

the term ‘essential service’. The members of POPCRU were called to join the 2007 public sector

strike, but were challenged by an urgent interdict brought by the SAPS. After a succession of

appearances in the LC and the LAC, the matter was brought directly to the CC to decide on.168

The primary argument of the SAPS was that it is regarded as being a single body as defined in s

213 of the LRA; therefore all employees employed by the SAPS are an essential service. It went

on to assert that there was no difference between employees between the South African Police

Services Act169 (hereinafter referred to as the SAPS Act) and the Public Services Act (hereinafter

referred to as the PSA),170 as the employees employed under the SAPS Act required the

160 Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others supra note 147 at 2154G-I. 161 E Gerick ‘Revisiting the liability of trade unions and/or their members during strikes: Lessons to be learnt from case law’ (2012) 75(2) Journal of Contemporary Roman-Dutch Law 567. 162 T W Kheel ‘Strikes and public employment’ (1969) 67(5) Michigan Law Review 941. 163 The LRA; s 213. 164 The LRA; s 71(10). 165 The LRA; s 70. 166 New National Party of SA v Government of the Republic of SA & other 1999 (5) BCLR 489 (CC). 167 SA Police Service v Police & Prisons Civil Rights Union & another (2011) 32 ILJ 1603 (CC). 168 SA Police Service v Police & Prisons Civil Rights Union & another supra note 167 at 1604G-J. 169 Act 68 of 1995. 170 Proc 103 of 1994.

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functions of the employees employed under the PSA.171 The union contended that this argument

was far too inclusive, which would effectively restrict the right to strike of all public sector

employees.172 This was indeed a significant constitutional right which would require an accurate

analysis of the LRA.173

The CC proceeded to interpret the term ‘essential services’ in light of the purpose of the LRA

and the SAPS Act and its specific context. The court stated that it has to construe the term

restrictively so that the right to strike would not be unjustifiably limited.174 It was held that the

provisions of the SAPS Act imply a differentiation between members and other employees.

Thus, the SAPS cannot be deemed to be a single entity.175 The Honourable Nkabinde J

considered the LC’s reasoning that because the Minister is entitled to appoint persons who are

employed under the PSA as members under the SAPS Act, there is a deliberate difference

between these two groups of employees. Hence, the Nkabinde J held that not all employees

employed by the SAPS were deemed as being part of an essential service.176

It is evident from this case that the court is more inclined to construe a statute that will give

effect to the right to strike rather than limit it.177 This interpretation is essential to ensure that

fundamental rights are attributed adequate significance.178 Therefore, it has to be acknowledged

that merely because an employee is employed within an essential services sector does not mean

that they perform an essential task and they would be permitted to engage in industrial action,

hence a minimum service agreement is necessary.179 However, this is not the reality as there is a

171 SA Police Service v Police & Prisons Civil Rights Union & another supra note 167 at 1608E-G. 172 SA Police Service v Police & Prisons Civil Rights Union & another supra note 167 at 1608G-H. 173 NEHAWU v University of Cape Town & others (2003) 24 ILJ 95 (CC), Khumalo & others v Holomisa (2003) 24 ILJ 305 (CC). 174 SA Police Service v Police & Prisons Civil Rights Union & another supra note 167 at 1615A. 175 The SAPS Act; s 38(1). 176 SA Police Service v Police & Prisons Civil Rights Union & another supra note 167 at 1616D. 177 C Cooper ‘Strikes in essential services’(1994) 15 ILJ 903 at 906. 178 Minister of Safety & Security v Sekhoto 2011 (5) SA 367 (SCA), Investigating Directorate: Serious Economic Offences & others v Hyundai Motor Distributors (Pty) Ltd & others: In re Hyundhai Motor Distributors (Pty) Ltd & others v Smit NO & others 2001 (1) SA 545 (CC). 179 Eskom Holdings Ltd v National Union of Mineworkers & others (Essential Services Committee Intervening) (2011) 32 ILJ 2904 (SCA).

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reluctance to discipline essential service workers who engage in illegal strikers, thus, the

compulsion to conclude minimum service agreements have been greatly undermined.180

It must be noted that in addition to interpreting statutes to give effect to the right to strike, as was

portrayed in SAPS supra, the CC may affirm the invalidity of any statute or action that is

inconsistent to the rights enshrined in the Constitution and still uphold the purpose of excluding

essential service employees from striking.181 This was illustrated in SA Defense Union (SANDU)

v Minister of Defense & another.182 In SANDU supra the CC was called upon to decide on

whether the provision endorsed by the Defense Act 44 of 1957 (hereinafter referred to as the

Defense Act), which prohibited soldiers from joining a trade union was unconstitutional.183

The argument presented by the applicants was that 126B(2) read with s 126B(4) violated rights

of members of the Defense force to freedom of association, as these provisions prohibited

members of the defense force from engaging in public protests, strikes and from joining trade

unions. In this regard the CC firstly analysed the constitutional implications of s 126B(2) read

with s 126B(4).184 However, the applicants only contended the constitutionality of the right to

engage in public protests and joining trade unions. It was asserted that by joining trade unions,

the interests of the soldiers would be better advanced without having them engaging in strikes.185

The respondents contended that this inclusion would eventually lead to the decline in discipline

and order of the defense force.186 Mokgoro J reasoned that the right to engage in public protest

fell squarely within the right to freedom of expression. The right to freedom of expression forms

the foundation of a democracy which is integrated within further rights that are reciprocally

supportive of each other.187 The Constitution provides for the right to freedom of religion, beliefs

180 D Pillay ‘Essential services: Developing tools for minimum service agreements’ (2012) 33 ILJ 801 at 802. 181 Engelbrecht v Road Accident Fund and Another 2007 (6) SA 96 (CC), Mazubuko and others v City of Johannesburg and others 2010 (4) SA 1 (CC), Ferreira v Levin NO & others 2011 (2) SA 473 (CC), Vryenhoek & others v Powell NO & others 1996 (1) SA 984 (CC), Mvumvu and others v Minister for Transport and another 2011 (2) SA 473 (CC), Fose v Minister of Safety and Security 1997 (3) SA 786 (CC), Harksen v Lane NO and others 1998 (1) SA 300 (CC), National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and others 1999 (1) SA 6 (CC), Pretoria City Council v Walker 1998 (2) SA 363 (CC), S v Gwadiso 1996 (1) SA 388 (CC), S v Mamabolo (E TV and others Intervening) 2001 (3) SA 409 (CC), Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC). 182SA Defense Union v Minister of Defense & Another (1999) 20 ILJ 2265 (CC). 183 The Defense Act; s 126B (2). 184 SA Defense Union v Minister of Defense & another supra note 182 at 2266F-H. 185 SA Defense Union v Minister of Defense & another supra note 182 at 2280E-F. 186 SA Defense Union v Minister of Defense & another supra note 182 at 2280G. 187 Curtis v Minister of Safety & Security & others 1996 (3) SA 617 B (CC), [1996] 5 BCLR 609.

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and opinion,188 the right to freedom of association189 and the right to assembly.190 These rights

collectively form the basis on which individuals are entitled to not only formulate opinions and

express them through various manners, but also to form and join associations of people who

share the same values and beliefs of such individuals who can promote and propagate the

opinions of such individuals as collectives.191 It must be noted that these rights are enshrined

within international instruments such as the ILO Conventions, which have enunciated the right to

engage in freedom of association192 and right to join a trade union and engage in collective

bargaining.193 Furthermore, our courts are compelled to give effect to these rights when

interpreting legislation.194

O Regan J stated that the ramifications of the prohibition contained ins 126B(2) read with s

126B(4), had grave consequences for the fundamental rights of soldiers. The prohibition

restricted all soldiers from either supporting or contending any objective or purpose of any issue

that is of social concern that would necessitate the complete detachment and isolation from the

activities and concerns of citizens.195 O Regan J rationalised that this perception of the defense

force could not be accurate. This prohibition had too far reaching implications, as members of

the defense force under s 199(7) of the Constitution merely requires soldiers to perform their

roles impassively. This, however, did not mean that they had to be deprived of the rights and

entitlements which are afforded to every citizen in other areas of their life.196

Furthermore, O Regan J noted that in various countries, member states of the ILO, allow trade

union formation. Even though they are not permitted to negotiate on their members’ behalf, such

unions may engage in consultation and representation of their members’ rights.197 This elucidates

that there can be different roles that a trade union can play without having its members resort to

strike action. Consequently, O Regan J was not satisfied that there was sufficient evidence

submitted by the respondents to prove that the discipline and efficiency of the defense forces

188 The Constitution; s 15. 189 The Constitution; s 18. 190 The Constitution; s 17. 191 SA Defense Union v Minister of Defense & another supra note 182 at 2272C-D. 192 Convention 87 of 1948. 193 Convention 98 of 1949. 194 S v Makwanyane 1995 (3) SA 391 (CC). 195 SA Defense Union v Minister of Defense & another supra note 182 at 2266F-H. 196 SA Defense Union v Minister of Defense & another supra note 182 at 2266F-H. 197 SA Defense Union v Minister of Defense & another supra note 182 at 2281A.

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would be undermined if members joined trade unions on the basis of consultation and

representation.198 On the contrary, it may prove that the discipline and efficiency of the defense

force would be enhanced if members are allowed to engage in trade union participation as there

would be adequate channels to address grievances, disputes and complaints.199 The CC held

decided that in order to give effect to members’ rights to engage in acts of public protest and the

participation in trade union activity, it was essential that the prohibition against protest action

and trade union be severed from the provision. Consequently, members would be entitled to

engage in acts relating to public protest, and trade union formation but not industrial action.200

The case of SANDU supra effectively illustrates that it is possible to allow workers within

essential services to advance their rights through trade union formation and protest action

without eroding the fundamental purpose of the defense force.201 The CC in this regard had to

ensure the purpose of the defense force which is to maintain the strictest form of discipline that

would ensure the safety and security of all who reside within the country.202 In the dissenting

judgment of L Heureux-Dube J it was stated that the country’s national defense as well as the

international objectives to maintain peace would be unreachable if the defense force did not

adhere to the strictest levels of discipline.203 The judiciary however is compelled to balance the

interests of society with the fundamental rights of all citizens204 in order to prevent differential

treatment.205 However, the judiciary has to also be mindful that disruption caused within

essential services is more detrimental than disruptions which occur in any other sector due to

vital services tendered by these employees.206 Therefore, O Regan J has highlighted that even

though members of the defense force may engage in trade union participation and protest action,

it is essential to ensure that adequate frameworks are implemented to regulate these rights in

198 SA Defense Union v Minister of Defense & another supra note 182 at 2281B. 199 SA Defense Union v Minister of Defense & another supra note 182 at 2281C. 200 SA Defense Union v Minister of Defense & another supra note 182 at 2267A. 201 SA Defense Union v Minister of Defense & another supra note 182 at 2281C 202 Crocodile Valley Citrus Co v SA Agricultural Plantation & Allied Workers (case no ESC102, unreported). 203 R v Genereux 88 DLR (4th) 110 (SCC) at 156-7 E. 204 S v Pennington and Another 1997 (4) SA 1076 (CC), De Freitas and Another v Society of Advocates of Natal (Natal Law Society Intervening) 1998 (11) BCLR 1345 (CC), Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and others 1998 (4) SA 1157 (CC). 205 Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC). 206 E Cordova ‘Strikes in the Public Service: Some determinants and trends’ (1985) 124 International Labour Review 163.

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order to prevent any disruption to strict discipline, as it would be harmful to the country as a

whole if this was not done.207

5.5. THE METHODS OF CONTROLLING AND DETERRING UNPROTECTED

STRIKE ACTION IN SOUTH AFRICA

South Africa has been overwhelmed by a torrent of strike activity in various sectors. These

strikes have been noted for their violence and destruction.208 This is extremely disturbing as the

LRA has enshrined specific provisions to regulate strike activity so as to prevent such criminal

activity.209 As was previously discussed, there are a number of protections given to lawful

strikes. However, there are also a number of measures which are implemented when employees

engage in unlawful strikes. Such consequences are enforced to deter illegal strike activity.210 It is

thus imperative to discuss the provisions of the LRA which entrench consequences for

unprotected conduct during strikes and their implementation through the LC and the LAC.

It must be noted that the essential purpose of a strike is to engage in power play that would lead

to improved working terms and conditions for the employee.211 When employees engage in

protected strikes they do not commit delicts or breaches of their employment contract.212

However, if a strike is illegal and unprotected, the LRA has provided various measures to control

and deter unlawful conduct by strikers.213 The LC has extensive jurisdiction to deal with every

illegal action committed by strikers whether the illegal action takes the form of a delict or a

crime.214 The effect of the dismissal of strikers who engage in unprotected strikes is that such

207 SA Defense Union v Minister of Defense & another supra note 182 at 2283A-E. 208 M Schutte & S Lukhele ‘The real toll of South Africa’s labour aggressiveness’ 2013 Africa Conflict Month Monitor 69. 209 T Petrus & W Isaacs-Martin ‘Reflections on violence and scapegoating in the strike and protest culture in South Africa’ (2011) 41(2) Africa Insight 50. 210 H J Deacon ‘The balancing act between the constitutional right to strike and the constitutional right to education’ (2014) 34(2) South African Journal of Education 1. 211 CEPPWAWU v Metrofile (Pty) Ltd (2004) 25 ILJ 231 (LAC). 212 The LRA; s 67(2)(a)(b). 213 K Von Holdt ‘Institutionalization, strike violence and local moral orders’ (2010)72/73 Transformation: Critical Perspectives on Southern Africa 137-138. 214 Lomati Mill Barberton (A Division of Sappi Timber Industries) v Paper Printing Wood & Allied Workers Union (1997) 18 ILJ 178 (LC).

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dismissal results in the termination of the employment relationship which takes effect

immediately upon the strikers’ dismissal.215

The first method of deterring unprotected strike action is through the LC which has been

afforded extended jurisdiction to grant interdicts or orders of restraint that would effectively

prevent individuals and organisations who engage in illegal strikes.216 However, such an interdict

cannot be granted unless the respondent has given the applicant 48 hours notice.217 This does not

mean that the court is rigidly bound to this rule. The LC may use its discretion in circumstances

where the health and safety of citizens necessitate that a shorter notification period of the

interdict should be given to the respondent.218 In some extreme circumstances notice may be

verbally supplied.219 However, the key element for granting an interdict is to prove that urgency

is required to prevent harm that may be caused by the unprotected strikers’ actions.220

There are a number of immunities that are given to individuals who perform tasks within the

course of their union functions.221 The LRA provides that members, officials, union officials and

office bearers cannot be held personally responsible for losses which are incurred in pursuance of

union activities. However, such immunity from liability is only provided if the act or omission is

undertaken in good faith.222 This is a highly imperative section as there has been an increase in

violent strike activity by trade unions.223 This section emphasises that if such individuals were to

engage in violence, intimidation and destruction of property, such individuals would be acting

215 FGWU & v Minister of Safety and Security & others [1999] (4) BLLR 332 (LC) at 21. 216 The LRA, s 68(1)(a), Sappi Fine Papers (Pty) Ltd (Adams Mill) v PPWAWU & others [1997] 10 BLLR 1373 (SE), Coin Security Group v SA National Union for Security Forces 1998 (1) SA 685 (C), Mondi Paper (a Division of Mondi Ltd) v Paper, Printing Wood and Allied Workers Union & others (1997) 18 ILJ 84 (D), Fourways Mall (PTY) Ltd & another v SA Catering & Allied Workers Union & another (1999) 20 ILJ 1008 (W), Administrator of Transvaal & another v Theletsane & others 1991 (2) SA 192 (A), Ex Parte Consolidated Fine Spinners & Weavers Ltd (1987) 8 ILJ 97 (D). 217 The LRA, s 68 (2). 218 The LRA, s 68(2)(a)-(c). 219 Enforce Guarding (Pty) Ltd v NASUWU & others [2003] 1 BLLR 9 (LC). 220 Edgars Stores Ltd v SA Commercial Catering and Allied Workers Union and others (1992) 13 ILJ 177 (IC), Blow Molders v NUMSA and others (case NHN 12/3/316 unreported), East Rand Plastics (Pty) Ltd v SACWU and others (case NH 12/3/693 unreported). 221 F Barchiesi ‘Privatization and the historical trajectory of “Social Movement Unionism”: A case study of municipal workers in Johannesburg, South Africa’ (2007) 71(1) International Labor and Working-Class History 51. 222 The LRA, s 97 (3). 223 Ncgobo v FAWU [2012] 10 BLLR 1035, V Gosai ‘When a union fails its members’ 2013 Without Prejudice 68, ‘Dear ANC, you’re failing. Love COSATU’ Daily Maverick 7 September 2012 at [2], available at http://dailymaverick.co.za, accessed on 7 September 2015.

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mala fide and would consequently lose the protection afforded by the LRA.224 In Langeveldt v

Vryburg Transitional Local Council & others,225 the court expressed a point in passing that

where strikers engage in criminal acts of violence, assault, intimidation and damage to property

the employer is entitled to seek recourse from the law to protect the interests of its non-striking

employees, its customers, suppliers and property as well as implement discipline on those

employees who have engaged in acts of misconduct.226 The LRA provides that employees who

engage in unprotected strikes may be interdicted from engaging in misconduct such as violence,

intimidation or damage of property, they may be dismissed, locked-out or they may be liable for

compensation in instances where they have been proven to have caused damage.227

The first case in which the High Court effusively dealt with criminal acts during a strike relating

to intimidation of non-striking employees, harassment and violence was in Mondi Paper (a

division of Mondi Ltd) v Paper, Printing, Wood & Allied Workers Union & others.228 The

applicant sought and obtained an interim interdict preventing the employees from engaging in

criminal behavior such as sabotage and intimidation of non-striking employees during a picket.

On the return date, the court was called to determine whether the High Court had jurisdiction as

well as whether the rule nisi should be extended.229 In terms of the issue pertaining to

jurisdiction, Nicholson J held that the LC possessed the required jurisdiction to deal with the

illegal actions of the employees.230

However, in terms of the second issue regarding the rule nisi, the LC had concerns relating to

application. In the application to the court, the employer could not identify any of the

respondents who it alleged was in contempt of the interim order. Therefore, the cited respondents

in the application was based on the criteria that excluded those employees who at the start of the

strike had absented themselves from work and since then had returned to their posts, but included

224 V P Mahlangu & V J Pitsoe ‘Power struggle between government and the teacher unions in South Africa’ (2011) 2(5) Journal of Emerging Trends in Educational Research and Policy Studies 368. 225Langeveldt v Vryburg Transitional Local Council & others [2001] 5 BLLR 501 (LAC), Lomati Mill Barberton (A Division of Sappi Timber Industries) v PPWAWU & others [1997] 4 BLLR 415 (LC), Stuttafords v SACTWU [2001] 1 BLLR 46 (LAC). 226 Langeveldt v Vryburg Transitional Local Council & others supra note 225 at 39. 227 The LRA; s 68. 228 Mondi Paper (A Division of Mondi Ltd) v Paper Printing Wood & Allied Workers Union & others (1997) 18 ILJ 84 (D). 229 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 84F-G. 230 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 84H-J.

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those workers who absented themselves from work and did not return.231 The applicant

acknowledged that the respondents cited in the application may have included those who did not

engage in criminal acts. Thus, the applicant was not seeking final relief against the innocent

parties who could be distinguished before the return day of the rule nisi.232

The LC emphasised that the effect of a court order is tantamount to the enactment of legislation

concerning the parties mentioned in an order of court.233 Nicholson J stated that the present

application would place innocent non-strikers in danger of having committed the crime of

contempt of court.234 The court reasoned that there were many employees who merely stayed at

home and were not part of the picket. Therefore, to bring a class action, as proposed by the

applicant, against all the employees without showing a cause of action would be incorrect. The

only common action which all employees engaged in was that of not reporting for work. There is

no justification for bringing a contempt of court application against an individual where no proof

has been established.235 If this was allowed then the criminal court would appropriately assume

that the order was correctly granted. Therefore, the onus would rest on the innocent non-strikers

to prove that the interim order should not have been granted. This is a reversal of the onus of

proof and is contrary to the essence of criminal justice which requires that he who alleges must

prove.236 The applicant’s argument which was perceived by Nicholson J implied that where there

were innocent non-participants of a strike as well as participants who did commit acts of

violence, sabotage and intimidation then a different level of proof in orders should be applied.237

In this regard, the court stated that this was a shocking proposal without any authority for such a

suggestion.238

The court described that intimidation of non-striking employees and blockading access to the

business premises was an “evil” that should not be accepted. However, this evil should be

weighed against another evil which is committed against non-participants when the court

231 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 91G-H. 232 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 91G-H. 233 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 92E. 234 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 92F. 235 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 93A-B. 236 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 92G-H. 237 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 93A. 238 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 93A.

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authorises orders without evidence.239 The former evil, as held by Nicholson J, does not have

such severe ramifications as the latter evil. The latter would cause the entire justice system to

lose the trust and reverence of society if it enforces orders against individuals who have been

identified as innocent non-participants. On this basis the LC could not discharge the rule nisi and

hold the respondents in contempt of court.240

The LC’s judgment indicates that in order for a contempt of court application to succeed there

must be proper identification of the perpetrators that connects them to the acts of violence,

intimidation and sabotage.241 The court is unwilling to construe an allegation of contempt lightly

and discharges the onus on the applicant to show proof that the cited respondents in the

application are in contempt of court.242 It is insufficient to merely prove that a crime or some

form of misconduct has taken place. An applicant has to also prove the identity of the perpetrator

of the crime.243

The most significant point which can be extracted from Mondi Paper supra is that there must be

an inextricable link between the identity of the strikers and the misconduct that they are alleged

to have committed, as was further affirmed in Mondi Ltd (MondiKraft Division) v Chemical

Energy Paper Printing Wood & Allied Workers Union & others.244 The evidence presented by

Mondi in its application referred to a number of people who ran through the employer’s mill

wearing civilian clothing, some of which were alleged to have turned off the emergency buttons

on numerous machines.245 Only one individual from that group was identified, however, the only

evidence against the individual is that he ran through the mill and did not stop when he heard his

name being called. Apart from this evidence there was nothing to prove that he had switched off

the emergency buttons. Thus, Francis J held that this was insufficient to ascertain that he or

239 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 93B. 240 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 93B. 241 Mondi Paper (A Division of Mondi Ltd) supra note 222at 90I-J. 242 Mondi Paper (A Division of Mondi Ltd) supra note 228 at 93C. 243 A A Landman ‘No place to hide- a trade union’s liability for riot damage: A note on Garvis & others v SA Transport & Allied Workers Union (Minister for Safety & Security, Third Party) (2010) 31 ILJ (Wcc) 2521 (2011) 32 ILJ 834 at 845. 244 Mondi Ltd (MondiKraft Division) v Chemical Energy Paper Printing Wood & Allied Workers Union & others (2005) 26 ILJ 1458 (LC). 245 Mondi Ltd (MondiKraft Division) others supra note 244 at 36.

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anyone else was responsible. On this basis the final order confirming the rule nisi could not be

made as there was a lack of evidence to identify the individual as the perpetrator.246

The decision held by Francis J is further elaborated in Polyoak (Pty) Ltd v Chemical Workers

Industrial Union & others,247 where the applicants applied for an interdict against all the strikers,

even though the application alleged misconduct against only specific employees within the group

of strikers.248 Brassey JA held that if there is no evidence to prove that an individual has

committed acts of misconduct or is an accomplice to such acts, then an interdict cannot be

brought against this individual.249 This is the correct position of our law even though that

individual may be part of a group engaging in malefactors or even if his interests are advanced

by the group of workers engaging in misconduct. Our law does not provide for collective guilt as

it is unjust to convict one individual based on the actions of the group when no proof has been

leveled against him.250 The LC further elaborated in Polyoak supra that if an interdict properly

identifies a potential perpetrator and specifically places their actions under restraint then it would

emphasise the purpose of an interdict and the authority of the court to exact the full force of the

law for their non-compliance.251 However, an interdict would be discriminatory and a disregard

to the principles of due process if it is granted without proper identification of the perpetrators

that links the individual to the wrongful acts. This would lead to injustice and the devaluing of

the justice system.252

The court in Woolworths (Pty) Ltd v SA Commercial Catering & Allied Workers Union &

others,253 confirmed the decision in Polyoak supra by deciding that to grant interdicts against

individuals who have not been proven to be linked to the misconduct is simply wrong.254 The

court has conveyed that they are sympathetic towards employers who experience violence during

industrial action; however, this does not mean that interdicts will and should be granted on that

basis alone. There must be due consideration to limitations that have to be in place which pertain

246 Mondi Ltd (MondiKraft Division) others supra note 244 at 36. 247 Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others (1999) 20 ILJ (LC). 248 Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others supra note 247 at 396A. 249 Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others supra note 247 at 396A. 250 Polyoak (Pty) Ltd v Chemical Workers supra note 247 at 396A. 251 Polyoak (Pty) Ltd v Chemical Workers supra note 247 at 394A. 252 Polyoak (Pty) Ltd v Chemical Workers supra note 247 at 394B. 253 Woolworths (Pty) Ltd v SA Commercial Catering & Allied Workers Union & (2006) 27 ILJ 1234 (LC). 254 Woolworths (Pty) Ltd v SA Commercial supra note 253 at 1235B.

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to when an interdict should be granted.255 The court is unwilling to grant ‘blanket’ interdicts that

cover a whole group of people without exact identification of the individuals who are alleged to

have committed the misconduct.256

In Sappi Fine Papers (Pty) Ltd (Adams Mill) v Paper Printing Wood & Allied Workers Union &

others,257 Nepen J affirmed the judgment in Mondi Paper supra, regarding the fact that the LC

possessed exclusive jurisdiction to provide relief to any strike that falls under s 68 (1) of the

LRA.258 However, Nupen J was silent as to whether the jurisdiction of the LC extended to grant

relief in circumstances where non-strikers are intimidated and harassed at their homes.259 This is

highly pertinent as Nicholson J’s judgment Mondi Paper supra confirms that the onus of proving

the respondents’ guilt rests with the employer. The judgment further indicates that the employer,

especially considering the advancements in technology, ought to take steps to ensure that it can

provide valid proof in the event of misconduct during a strike. This statement implies that the

employer could have obtained the use of cameras as a means of recording the unlawful

conduct.260 Although, Nicholson J makes no mention as to the relief that intimidated employees

may resort to in the event that they encounter intimidation or harassment at their homes.261 This

is regrettable as a majority of cases involving intimidation and attacks on non-strikers or their

families occur outside the business premises and thus exceeds the boundaries where employers

may take measures to prove the perpetrators wrongdoings.262 Whereas it may be within the

ability of the employer to take measures to provide proof of misconduct in the workplace, the

suggestion made by Nicholson J proffers no recourse or process for obtaining relief against the

injustice suffered by non-strikers.263

The next consequence which follows from an unprotected strike is that the employer may claim

compensation against the union who is deemed to have initiated the unprotected strike.264 In

255 Woolworths (Pty) Ltd v SA Commercial supra note 253 at 1235B. 256 Woolworths (Pty) Ltd v SA Commercial supra note 253 at 1236E-F. 257 Sappi Fine Papers (Pty) Ltd (Adams Mill) v Paper Printing Wood & Allied Workers Union & others (1998) 19 ILJ 246 (SE). 258 Sappi Fine Papers (Pty) Ltd (Adams Mill) supra note 257 at 246I. 259 Sappi Fine Papers (Pty) Ltd (Adams Mill) supra note 257at 246J. 260 Mondi Paper (A Division of Mondi Ltd) supra note 227 at 93C. 261 Mondi Paper (A Division of Mondi Ltd) supra note 227 at 93C. 262 Selala (note 117; 121). 263 Mondi Paper (A Division of Mondi Ltd) supra note 227 at 93C. 264 Adcock Ingram Critical Care v CCMA & others [2001] 9 BLLR 979 (LAC).

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Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union,265 the court illustrated how the

LRA should be interpreted to provide a ‘just and equitable’ sum for compensating an employer

where a union has initiated and furthered an unprotected strike. On 19 April 2000 the employer

received a report indicating that its workforce intended to engage in a strike. There were various

attempts made by the employer to communicate with the union regarding the employees’

disputes, although these attempts were in vain.266 The strike commenced on the 20th of April

2000, however, the union only met with the employer during the latter part of 21st April.267

During the course of the events, mass meetings were held by the union encouraging workers not

to return to work until their demands were met.268 The employer accordingly obtained an

interdict on the 21st of April and consequently NUM distanced itself from the strike.269 During a

further meeting held by the employer with the union it was conveyed to the union that the

employer believed that the union had instigated the strike. The union did not dispute this

allegation.270 Subsequent to this meeting, the union called off the strike and instructed the

workers to return to work.271 As a result of the strike the damages incurred by the employer due

to a loss of production and profits amounted to R 15 370 000, although the employer limited its

claim to R100 000.272

Farber AJ considered the facts of the case in light of s 68 of the LRA which allows an employer

to claim compensation for the damages incurred as a result of an unprotected strike under the

authority of a union.273 The court analysed the first requirement which requires an investigation

into whether there were any attempts that were made to comply with the provisions of chapter

five of the LRA which outline the process for a protected strike.274 Farber AJ held that the union

had instigated the strike as it had hosted a mass meeting with the employees’ encouraging them

not to return to work until their demands were met.275 Furthermore, the union did not deny any

265 Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union [2002]1 BLLR 84 (LC). 266 Rustenburg Platinum Mines Ltd supra note 265 at 2038B-D. 267 Rustenburg Platinum Mines Ltd supra note 265 at 2038J. 268 Rustenburg Platinum Mines Ltd supra note 265 at 2039A. 269 Rustenburg Platinum Mines Ltd supra note 265 at 2039B. 270 Rustenburg Platinum Mines Ltd supra note 265 at 2039E-I. 271 Rustenburg Platinum Mines Ltd supra note 265 at 2040C. 272 Rustenburg Platinum Mines Ltd supra note 265 at 2036A-B. 273 The LRA; s 6 (1)(b). 274 The LRA; s 68(1)(b)(aa). 275 Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union supra note 265 at 2042D.

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claim by the union that it had instigated the strike. Farber AJ reasoned that the fact that the union

failed to make any vocal submission to oppose the allegation essentially deduced one to believe

that the allegation was true.276

In light of the second requirement which requires an investigation into whether the strike was

premeditated,277 the LC held that it was indeed premeditated. Farber AJ acknowledged that it

was highly improbable that there were two strikes which commenced at the same time

considering that the mines were situated 26 kilometers apart.278 The third requirement questions

whether there was any unjustified conduct on the part of the employer.279 In this regard, Farber

AJ held that the employer had made every attempt to consider the demands of the union and to

conduct meetings with the union. There was no evidence to prove that the employer had not

taken the union’s demands seriously or that it was unwilling to negotiate to resolve the

dispute.280 In fact it was the union who was unwilling to negotiate with the employer and deemed

any communication with such as a waste of time.281

The LRA also compels the employer to prove whether there was any compliance to the interdict

granted by the court.282 In terms of this provision there are three aspects that the court has to

consider. The first aspect pertains to the interests of collective bargaining.283 The court in this

regard was of the view that the unprotected strike was of a serious nature as it had led to the loss

of approximately R15 million.284 Farber AJ also reasoned that the behavior of the union was

completely unacceptable in light of the interests of security within a workplace that necessitate

stable and controlled actions in accordance to the law. When parties resort to their own strategies

to resolve disputes such as the instigation and participation in illegal strikes it erodes the

foundations of collective bargaining, it prejudices the innocent parties involved as well as

impacts on the economy as a whole.285 The second aspect which has to be weighed by the court

276 Benoni Produce & Coal Co Ltd v Gundelfinger 1918 TPD 453, Benefit Cycle Works v Atmore 1927 TPD 524, East Asiatic Co (SA) Ltd v Midlands Manufacturing Co (Pty) Ltd 1954 (2) SA 387 (C). 277 The LRA; s 68(1)(b)(bb). 278 Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union supra note 265 at 2042H-I. 279 The LRA; s 68(1)(b)(cc). 280 Rustenburg Platinum Mines supra note 265 at 2044A-J. 281 Rustenburg Platinum Mines supra note 265 at 2044G. 282 The LRA; s 68(1)(b)(dd). 283 The LRA; s 68(1)(b)(dd) (ii). 284 Rustenburg Platinum Mines supra note 265 at 2045D-E. 285 Rustenburg Platinum Mines supra note 262 at 2045D-E.

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is that of the duration of the strike. In Rustenburg supra the union in this regard did instruct the

employees to return to work which resulted in the short duration of the strike.286 The last aspect

that the court is compelled to consider is the financial position of the parties. Farber AJ held that

the union was in a very strong financial position as compared to the union who was barely

solvent. However, this could be resolved by providing a structured payment schedule that would

suit the financial position of the union without prejudicing the employer’s claim for

compensation.287

After an assessment regarding the facts of the case in light of the provisions of the LRA, the

court awarded the employer R100 000 in compensation to be paid by the union in monthly

installments of R5000.288 The case of Rustenburg supra clearly elucidates that the court is

limited to the provisions of s 68 of the LRA and may not grant compensation for the entire

amount suffered as was permitted under the common law, but is only constrained to

compensation that is ‘just and equitable’ based on the factors that are enshrined by the LRA.289

The decision of Farber AJ is an exemplary portrayal of how the LC should assess all the factors

of the case in its entirety and then based on this assessment, the court should make a decision on

which side the scale tilts. The award that is ‘just and equitable’ must reflect this balance.290

However, in Mangaung Municipality v SA Municipality Workers Union,291 the court provided a

further criterion in addition to those enshrined in s 68 of the LRA by holding that a union can be

held liable not only for initiating an unlawful strike, but also for not taking any steps to end the

strike.292 The court stated that as a result of the relationship that manifests itself during the course

of collective bargaining, a union has the responsibility to prevent an illegal strike and where such

does occur then the union is liable for any damages suffered by the employer.293 Furthermore,

the union is also liable to compensate the employer if it commissions its representatives to end

286 Rustenburg Platinum Mines supra note 262 at 2045F. 287 Rustenburg Platinum Mines supra note 262 at 2045F-G. 288 Rustenburg Platinum Mines supra note 262 at 2046A. 289 W Beech S Peart ‘Company successfully sues union for compensation for losses attributable to unprotected strikes’ 2001 De Rebus 55. 290 ibid 55. 291 Manguang Local Municipality v SA Municipality Workers Union (2003) 24 ILJ 405 (LC), SATAWU and another v Garvas and others 2013 (1) SA 83 (CC). 292 Manguang Local Municipality supra note 291 at 407C. 293 Manguang Local Municipality supra note 291 at 407C.

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illegal strike activity and such representatives fail to do so.294 The court reasoned that in light of

the relationship that exists between the employer and the union as a consequence of collective

bargaining, the union undertakes responsibility for the actions of its members and their

compliance with the LRA especially when they engage in strike action.295

The effect of a protected strike is that it gives way to the temporary suspension of an employee’s

employment contract.296 If an employer dismisses an employee for engaging in a protected

strike, this would amount to an automatically unfair dismissal.297 However, where an employee

engages in illegal strike action an employer is entitled to effect disciplinary action against the

employee which is a lesser sanction than actual dismissal.298 This may take the form of

ultimatums to return to work, provided that such ultimatums are backed by the threat of final

warnings.299 The court will not come to the assistance of dismissed strikers who engaged in

illegal conduct during an unprotected strike and ignore ultimatums and warnings to return to

work.300 In regard to final warnings, the case of National Union of Metalworkers of SA & others

v Atlantis Forge (Pty) Ltd,301 provided an excellent understanding on how final warnings and

consequent dismissals should be discharged. The employees of Atlantis Forge engaged in a strike

as a result of a rumour regarding the late pay of annual bonuses. A strike ensued and employees

were issued with a final warning on the basis that it was an unprotected strike.302 However,

employees who had previously been given warnings for a strike in February 2002 underwent

disciplinary proceedings for their participation in the present strike. Consequently, these

employees were dismissed and approached the court for relief on the basis that their dismissals

were procedurally and substantively unfair.303

294 Manguang Local Municipality supra note 291 at 407D-E. 295 Manguang Local Municipality supra note 291 at 407F. 296 FGWU v Minister of Safety & Security (1999) 20 ILJ 1258 (LC). 297 The LRA; s 187 (1) (a) & s 67 (4) & (5). 298 Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ 1603 (LAC). 299 Ramotsepane & others v Barmot Truck Hire 2002 (6) BLLR 525 (LAC). 300 NUFAWU of SA v New Era Products (Pty) Ltd (1999) 20 ILJ 869 (IC). 301 National Union of Metalworkers of SA & others v Atlantis Forge (Pty) Ltd (2005) 26 ILJ 1984 (LC), Food and Allied Workers Union obo Rala & others v Coca Cola Bottling & another (2002) 23 ILJ 196 (CCMA), Mzeku & others v Volkswagen SA (Pty) Ltd & others (2001) 22 ILJ 1575 (LAC). 302 National Union of Metalworkers of SA others supra note 301 at 1985C. 303 National Union of Metalworkers of SA others supra note 302 at 1985D-F.

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The court in this instance mentioned that the final warnings given to employees for their strike in

February 2002 had lapsed in terms of the disciplinary code. The employer was under a duty to

destroy such warnings after a period of 6 months had lapsed. The court accordingly held that

their dismissals were unfair.304 It was noted that the present strike did not in any way include acts

of violence or any other criminal behavior; therefore, the employer was enforcing the

disciplinary procedure based on their participation in the strike during February 2002. This was

entirely incorrect as the employer was initiating disciplinary proceedings on a basis that had

expired and could no longer be enforced.305 Accordingly, the court held that if the employer

wanted to enforce disciplinary proceedings then it had to do so within the period specified by the

Disciplinary Code that bound the employer and the employees. The dismissals of the employees

were held to be unfair.306

This case effectively illustrates that when employees engage in misconduct; their previous

actions cannot be held against them. Furthermore, there was a prescribed period of time for

which the employer could have initiated disciplinary proceeding, but failed to do so. The

dismissed employees should not be prejudiced for the employer’s failure to adhere to the

disciplinary code.307 It must be noted that dismissals preceding final warnings for unrelated

issues to that of an unprotected strike will not be upheld by our courts.308 Furthermore, an

employer must give the employees sufficient time to respond to the ultimatum before effecting

the illegal strikers’ dismissal.309 It would be unfair to the employees if the employer issued an

ultimatum that the employees could not comply with.310

An employer is entitled to dismiss an employee provided that this action follows fair procedure

in accordance to the Code of Good Practice (the Code).311 The employer must take all steps to

ensure that the dismissal follows fair procedure and that it engages in dialogue with the union

before effecting such dismissals or implementing any unilateral decision.312 The Code stipulates

304 National Union of Metalworkers of SA supra note 302 at 1985G. 305 National Union of Metalworkers of SA supra note 302 at 1985G-J. 306 National Union of Metalworkers of SA supra note 302 at 1986F-G. 307 National Union of Metalworkers of SA supra note 302 at 1986C-E. 308 SACTWU & others v Novel Spinners (Pty) Ltd [1999] 11 BLLR 1157 (LC). 309 NUM & others v Billard Contractors CC & Another [2006] 12 BLLR 1191 (LC). 310 WG Davey (Pty) Ltd v National Union of Metalworkers of SA (1999) 20 ILJ 2017 (SCA). 311 The LRA; s 68(5), Liberty Box & Bag Manufacturing Co (Pty) Ltd v Paper Wood & Allied Workers Union (1990) 11 ILJ 427 (ARB). 312 NUM v Goldfields Security Ltd (1999) 20 ILJ 1553 (LC).

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the requirements which have to be met when regarding whether the dismissal was fair.313 The

postulation for the enforcement of dismissal is a result of the employees’ failure to comply with

the conciliatory framework provided for in the LRA.314 Essentially, this form of ‘punishment’ is

to dissuade employees from engaging in illegal strikes as such employees had no cause to resort

to illegal activity when there are proper channels to follow to resolve a dispute.315 The courts in

this instance have required that strikers provide adequate reasons as to why they engaged in an

illegal strike.316 It must be noted that this illegality of engaging in an unprotected strike must not

merely be of a technical nature, but rather there must be a material breach in non-compliance

with the conciliatory framework of the LRA.317 Where strikers engage in an unprotected strike as

the union believed that the conciliatory framework would be too slow to resolve the matter, the

employees bear the consequences of their unlawful actions.318

Therefore, in terms of the requirement that there must be a material breach, the court must be

satisfied that the illegal strike was not a mere short cessation of work319 as a result of misconduct

or gross inequality on the part of the employer.320 In these circumstances the court may be

willing to tilt the scale in the favour of the employees.321 However, there are various factors

which the court takes into consideration. The most significant is whether the avenues to resolve

the dispute were not appropriate to them and such alternatives were exhausted.322 The court will

313 Doornfontein Gold Mining Co Ltd v National Union of Mineworkers & others (1994) 15 ILJ 527 (LAC), PPWAWU & others v Tongaat Paper Co (Pty) Ltd (1992) 13 ILJ 393 (IC), Plaschem (Pty) Ltd v CWIU (1993) 14 ILJ 1000 (LAC), Sentraal Wes (Kooperatief) Bpk v Food & Allied Workers Union & others (1990) 11 ILJ 977 (LAC), Nomaqumbe & others v Multi Office (Pty) Ltd (1992) 13 ILJ 152 (IC), Henred Fruehauf Trailers (Pty) Ltd v National Union of Metalworkers of SA & others (1992) 13 ILJ 593 (LAC), Performing Arts Council (Transvaal) v Paper Printing Wood & Allied Workers Union & others (1992) 13 ILJ 1439 (LAC). 314 A C Basson ‘The dismissal of strikers in South Africa (Part 1)’ 1992 SA Merc LJ 300. 315 NUMSA & others v Nalva (Pty) Ltd (1992) 13 ILJ 1207 (IC), NUMSA v Elm Street Plastics t/a Adv Plastics (1989) 10 ILJ 328 (IC). 316 FAWU v Spekenham Supreme (1988) 9 ILJ 627 (IC). 317 MWASA v Perskor (1989) 10 ILJ 441 (IC), FAWU v National Co-op Dairies (2) (1989) 10 ILJ 490 (IC), FAWU and SA Breweries (1990) 11 ILJ 413 (ARB), Seven Abel CC t/a The Crest Hotel v HARWU (1990) 11 ILJ 504 (LAC), Sasol Industries v SACWU (1990) 11 ILJ 1010 (LAC), NUMSA v Three Gees Galvanising (1993) 14 ILJ 372 (LAC), SACWU v Noristan Holdings (Pty) Ltd & others (1987) 8 ILJ 682 (IC), SACWU v Pharm Natura (Pty) Ltd (1986) 7 ILJ 696 (IC). 318 Coin Security Group (Pty) Ltd v Adams [2000] 4 BLLR 371 (LAC). 319 Performing Arts Council of the Transvaal v Paper Printing Wood & Allied Workers Union & others (1995) 16 ILJ 233 (IC). 320 AMAWU v Concor Construction West (1988) 9 ILJ 839 (IC). 321 J Gauntlett & O Rogers ‘When all else has failed: Illegal strikes, Ultimatums and Mass Dismissals’ (1991) 12 ILJ 1171 at 1176. 322 Ndamana v Marble Lime & Associated Industries (1991) 12 ILJ 148 (IC), FAWU v Cape Slaughtering, Flaying & Dressing Co Ltd (NHK 13/2/2175, unreported).

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also consider the financial loss incurred by the employer and his financial position.323 The court

on the other hand will not be willing to assist employees who blatantly ignore the instructions of

their unions and engage in violence, assault and intimidation during such unprotected strike

activity.324 There are instances when the court will not at all be willing to assist employees.

These instances would be when employees are interdicted from engaging in illegal strike action

and nevertheless ignore such interdict. The effect of the dismissal of strikers who engage in

unprotected strikes is that such dismissal results in the termination of the employment

relationship which takes effect immediately upon the strikers’ dismissal.325

5.6. CONCLUSION

It is evident from the above discussion that there are clear and precise procedures stipulated by

the LRA in s 65 for engaging in lawful strikes. However, there have been instances where the

legislature has been silent on specific issues, which has necessitated that the judiciary interprets

such provisions in light of orderly collective bargaining.326 Furthermore, as was abundantly clear

from the LRA’s prohibitions on how strikes must be conducted and that the court is unyielding

towards employees who defy these prohibitions. The Judiciary in this regard as was conveyed is

willing to award compensation for an employee’s lack of compliance.327 The reality of the

situation however, is that even though these guidelines are endorsed in legislature, there is still

great divergence from these provisions that govern an employee’s conduct during a strike.328

These incidents will be discussed in the next chapter, Chapter six.

323 FBWU v Hercules Cold Storage (1989) 10 ILJ 457 (IC). 324 NUM v Libanon Gold Mining Co (1988) 9 ILJ 832 (IC), SAWU v Cape Lime (1988) 9 ILJ 441 (IC). 325 FGWU & others v Minister of Safety and Security & others [1999] 4 BLLR 332 (LC) at 21. 326 B Ardell ‘Regulating strikes in essential (and other) services after the new trilology’ (2011) 17 Canadian Labour and Employment Law Journal 404. 327 Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union supra, Manguang Local Municipality v SA Municipality Workers Union supra, SATAWU and Another v Garvas and others supra. 328 B Fleisch ‘The politics of the governed: South African Democratic Teacher’s union Soweto Strike, June 2009’ (2010) 16(2) South African Review of Education 118.

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CHAPTER SIX

THE EFFECTIVENESS OF LEGISLATION IN GOVERNING STRIKE ACTION AND ITS

FUTURE AMENDMENTS

6.1. INTRODUCTION

The transition from apartheid into a new South Africa was believed by many to mark the end of

violence and bloodshed through the establishment of mediation and the institution of

constitutional values.1 However, this has not been the reality as South Africa has been termed the

‘strike capital of the world’, and this is reasonably justified as in recent years the country has

been overcome by a surge in service delivery and labour protests that have been accompanied by

violence, intimidation, harassment and civil unrest.2 It has been noted that the majority of these

strikes are unprotected and have inculcated an aura of fear, intimidation and catastrophic

violence.3 It has become apparent that even though there is an excessive amount of chaos and

disruption during such strikes, these strikes are not only protracted but also conclude with

dissatisfactory compromises that often result in further strike action.4 Even after years of the

implementation of the Labour Relations Act 66 of 1995 (hereinafter referred to as the LRA), the

Department of Labour has recorded a steady increase in strikes with an account of 51 strikes in

2009, 67 strikes in 2011, 99 in the year 2012 and a shocking 114 strike incidents in the year

2013.5 In 2014, the Department of Labour recorded a total of 88 strikes. Even though the number

of recorded strikes in 2014 decreased from the year 2013, the duration of the strikes in 2014

1 K von Holdt ‘South Africa: the transition to violent democracy’ (2013) 40(138) Review of African Political Economy 589. 2 L Connolly ‘Fragility and the State: Post-apartheid South Africa and the State-Society Contract in the 21st Century’ (2013) 13(2) African Journal on Conflict Resolution 88. 3 K Selala ‘The right to strike and the future of collective bargaining in South Africa: An exploratory analysis’ (2014) 3(5) International Journal of Social Sciences 121. 4 M J Maluleke ‘The importance of bargaining and reflections of the public service strike-A perspective from SADTU’ 2011 PSC News 12. 5 S K Lusanda The impact of violence and intimidation on strike actions and their effect on union membership in the Platinum Mining Industry (unpublished MBA thesis, Gordan Institute of Business Science, University of Pretoria, 2014) 21.

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increased. The Department of Labour recorded that in 2013 there were 1.85 million work days

lost as a result of strikes. In 2014, this figure soared to 10.3 million work days lost as a result of

strikes.6

6.2. A REPORT ON RECENT STRIKE ACTION IN SOUTH AFRICA

It is imperative to note that the LRA has extensively promulgated legislature to control the

enforcement of the right to strike, as was discussed at length in Chapter 5.7 However, there has

been an overwhelming torrent of recent strike activity in South Africa that has been characterised

by grievous criminal activity such as violence, intimidation, harassment, assault, death and

contempt of court orders.8 An analysis of these strikes is thus essential to identify whether the

provisions governing strike law are effective in controlling unlawful behavior by strikers.9

Therefore, this section seeks to highlight the devastating and violent strikes that have brought the

country to its knees.10 This discussion is focused on the time frame between the years 2005 and

2015. The justification for focusing this report on this period is to analyse whether the LRA has

been effective 10 years after coming into effect, as this would have provided an adequate phase

for the implementation of the LRA within the new South Africa.

The 2006 security guard strike was recorded at that time as being the most violent since the

beginning of the new South Africa.11 The strike concerned the South African Transport and

Allied Workers Union (SATAWU) over a wage increase of 11%. Government was only willing

to offer 8%. The parties engaged in negotiations to no avail as the union was unwilling to accept

6 ‘Strikes costing South Africa billions’ available at http://businesstech.co.za/news/business/98727- /strikes -cost-south-africa-r6-1-billion/, accessed on 28 December 2015. 7 A Rycroft ‘Can a protected strike lose its status?’ (2012) 33 ILJ 821. 8 ‘No need for strike violence-Zuma’ The Citizen 10 July 2014, available at http://www.citizen. co.za/208466 /need-strike-violence-zuma/,accessed on 6 September 2015. 9 T Ngcukaitobi ‘Strike law, structural violence and inequality in the platinum hills of Marikana’ (2013) 34 ILJ 836. 10 N Ngidi Market reaction to industrial action in South Africa (unpublished LLB thesis, University of Witswatersrand, 2011) 24. 11 T Makgetla ‘The most violent post-apartheid strike’ Weekly Mail and Guardian 4 May 2006 at 10.

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the offer of 8%.12 The violence escalated during mid-May when coaches of Metrorail were set

alight and ticket offices petrol bombed. The damages to these coaches were nothing less than R4

million. As a result of these appalling acts of violence, Metrorail was obliged to suspend their

service to prevent threats to the lives of innocent commuters and further destruction of

property.13 There had been reports of non-striking security guards being assaulted, intimidated

and even murdered.14 The police were called upon on countless occasions to intervene when

strikers began their attacks against fellow workers. It is imperative to note that these horrific acts

of violence took place while an interim interdict was in force.15

The largest strike after the beginning of the democratic era started on the 1st of June 2007 and

lasted for 28 days.16 This strike involved over a million public sector employees after failed

negotiations between Government and employees regarding wages, housing and medical

benefits.17 The mass solidarity action resulted in a complete standstill of services as every sector

of the country was paralysed by the disruptions that infiltrated taxi services, municipal services,

electrical and cleaning services as well as administrators within the airports, border lines, vehicle

licensing departments, labour offices and the deeds offices.18 The payment of social grants and

pensions was also disrupted. Immigration officials engaged in the strike added pandemonium at

international airports when flights had to be delayed or diverted.19 The strike was depicted as the

most violent and inhumane strike since the end of apartheid.20

12 P Maganda ‘Guard strike to intensify’ Daily Dispatch 23 May 2006 at 10. 13 C Bailey ‘Trains suspended after coaches torched’ Cape Argus 18 May 2006 at 4. 14 J Mawade ‘Guard killed for not taking part in strike’ The Herald (EP Herald) 19 May 2006 at 2. 15 V Nzapheza ‘Security thugs go on rampage’ Citizen 6 April 2006 at 1. 16 G Wills ‘The Effect of Teacher Strike Activity on Student Learning in South African Primary Schools’ (2014) ERSA Working Paper 402 5. 17 ‘South Africa: over a million public sector workers on strike’ South African Protest News 21 August 2010 at 1. 18 ‘South Africa: COSATU calls off public service strike’ available at https://www.wsws.org/en/articles/2007/07/s- a- f-r-j14.html, accessed on 10 August 2015. 19 A Bajo & S Balkaran ‘A descriptive analysis of the 2007 Public Sector Strike in South Africa’ (2009) 33(2) SAJLR 125. 20 ‘South Africa: Strike action affects health services’ available at http://www.irinnews.org/report/72719/south-a- fr-ica-strike-action-affects-health-services, accessed on 11 August 2015.

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It was reported that nurses stormed wards and physically ripped patients’ drips from their arms.

They intimidated and forced doctors and nurses to abandon their posts. These strikers were

accordingly arrested.21 Although there are no exact reports concerning the extent of the

disruption caused, it is evident that many patients were unable to collect their medication due to

the closure of medical institutes.22 The striking workers would arm themselves with sjamboks,

knobkerries and prevent fellow employees’ access to the workplace. In one hospital these armed

strikers moved beyond the picket line and forced the entire hospital to hastily evacuate their

workplace. The patients who were too sick had to be assisted out of the hospital and onto the

street.23 It was former President Thabo Mbeki who echoed the sentiments of the country when he

stated that the South Africa should question itself on the type of country and morals it seeks to

establish when intimidation, violence and destruction to property become inherent to strike

action.24

In terms of the LRA,25 healthcare workers are not permitted to engage in protected strikes unless

a minimum services agreement is concluded which would provide that only minimum services

be regarded as essential.26 However, this strike did not merely deprive patients of healthcare

services, but it also seeped into the education sector robbing children of their right to education.27

Teachers were dominant participants of the strike. Schools were compelled to close their doors

after teachers violently disrupted classrooms forcing fellow workers to join in the strike.28 This is

extremely concerning as education is regarded as non-negotiable within advanced societies, but

yet in South Africa the conduct of these strikers have diminished the value and time within

21 P Zulu A Nation in Crisis: An Appeal for Morality (2013) 210. 22 N Veenstra … et al ‘Unplanned antiretroviral treatment interruptions in Southern Africa: how should we be managing these?’ (2010) 6(4) Globalisation and Health 2. 23 A Gray ‘The Public Sector Strike- confronting reality’ 2007 SA Pharmaceutical Journal 20. 24 ‘South Arica Public sector strike’ The Washington Post 13 June 2007, available at http://www.waashington.com /wp-dyn/content/article/2007/06/13/AR2007061300373.html, accessed on 6 September 2015. 25 The LRA; s 72. 26 D Pillay ‘The South African Essential Services Committee Part ii: Functions of the committee’ (2001) 5(2) Southern African Business Review 65. 27 The Constitution; s 29. 28 Global Centre for Public Service Excellence Motivation of Public Service Officials: Insight for Practitioners (2014) 4.

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which learning takes place.29 These striking public sector employees were promised full pay and

further benefits while engaged in the four week long strike, however, this promise was never

materialised.30 The most far reaching consequence of the 2007 public sector strike was that it

resulted in a loss of approximately R5.6 billion as a result of the 12 million work days lost.31

In 2009 taxi drivers went on strike over the proposed implementation of the Bus Rapid Transit

System. The strikers showed no mercy as innocent passengers were injured and killed when taxis

and buses were petrol bombed.32 This was followed by more violence in 2010 as the taxi

association engaged in further violent strikes. This strike was characterised by immense

destruction to buses, shootings and the burning of tyres in and around the city.33

Ironically, the longest devastating public sector strikes took place after South Africa’s hosting of

the 2010 World Cup. In August 2010, public sector employees engaged in a ‘chaotic’ three week

long strike over an increase in wages and housing allowance34 that was only suspended on the 6th

of September 2010.35 Emphasis needs to be drawn to the fact that workers began strike action

when they rejected Government’s offer of 7% increase in salary. It is indeed ironic that after a

devastating three week strike Government only increased its offer by 0.5% of which was

accepted after much negotiation, violence, intimidation and chaos.36

29 H J Deacon ‘The balancing act between the constitutional right to strike and the constitutional right to education’ (2014) 34(2) South African Journal of Education 1-2. 30 ‘South Africa: Capitalist government shaken by public workers strike’ Workers Vangaurd 10 September 2010 at 1. 31 Bajo & Balkaran (note 19 above; 127). 32 E Lewis ‘Woman, baby die after bus petrol bombed in taxi strike’ Cape Argus 24 February 2006 at 1. 33 A Dlamini & L Chilwane ‘Violent taxi strike fails to halt Rea Vaya’ Business Day 16 March 2010 at 4. 34 ‘Public-sector unions to meet over govt wage offer’ Mail & Guardian 13 October 2010 [1]. 35 S Khumalo ‘Judge for yourself’ (2010) 19(5) The Shop steward 6. 36 ibid 6.

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These striking workers included nurses, police officers, teachers, soldiers as well as other

hospital employees.37 During the sixth day of the strike, the army had to be deployed to hospitals

as striking workers began blocking the entrances to hospitals and physically assaulting fellow co-

workers who tried to enter. Strikers even went as far as to disrupt surgical theatres.38 It is quite

evident that there is a grave problem, as court interdicts were granted preventing employees from

essential services from engaging in strikes, yet strikers still continued. Moreover, employees

were threatened with the weapon of dismissal. This as well did not have any affect in deterring

the striking workers.39 It was reported that in the King Edward Hospital in Kwazulu-Natal,

strikers prevented workers and patients from entering the hospital. The strikers only permitted

patients who required antiretroviral medication to enter the hospital. This occurred even though

there was an interdict in place prohibiting strikers from engaging in such conduct.40 Teachers not

only disrupted classrooms, but matriculation students were behind in their preparation for trial

examinations. Consequently, these examinations had to be postponed for a later date.41

Union leaders “called for a complete shutdown of the public service”. Strikers used their chains

and locks to lock out fellow workers who attempted to enter hospitals and other institutions. It

was noted that not even during apartheid did the violent strikes prevent nurses, doctors and

pharmacists from helping the sick.42 It is no doubt that the 2010 public sector strike caused

insurmountable disruption and endangered the lives of many. However, more significantly to our

third world country is that this strike is estimated to have cost the country R1 billion a day.43

The most concerning issue regarding these strikes is not that they occur, but rather that they are

characterised by violence and are a protracted battle. It was clearly highlighted that,

37 ‘Maturing contradictions: the 2010 public sector strike in South Africa’ available at http://www.Column .global-labour-university.org/2010/ … /maturing-contradictions-2010-public.html, accessed on 8 August 2015. 38 ‘South African Public Sector Strike ‘endangering lives’ The Guardian 23 August 2010 [1]. 39 ibid 1. 40 ‘Strikers defy court order at Durban hospital’ Mail & Guardian 23 August 2010. 41 T R Mle ‘A critical analysis of the 2010 public service strike in South Africa: a service delivery approach’ (2012) 47(1) Journal of Public Administration 293. 42 ‘The 2010 Public Sector Strike-bringing out the best and the worst in ordinary people-A report by SAAHIP EXCO 2010 SA Pharmaceutical Journal 59. 43 ‘Public Sector unions and government set on a collision course’ Daily Maverick 5 June 2012 [1].

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“[c]ivil servants have a right to strike in support of their wage demands. But striking teachers do not have the right to throttle school children, sjambok principles to disrupt schools, and health workers do not have the right to use threats of violence to keep hospitals closed”.44

Another report on the public sector strike highlighted Government’s support and understanding

for the plight of the striking employees, however, society and Government greatly condemned

the violence and intimidation in which the strikers asserted their demands.45 The violence of the

strikers was met with contempt by Government in the form of rubber bullets and water cannons

on strikers by the second day of the strike.46 The 2010 public sector strike was yet again another

illustration of non-compliance with the LRA that threatened to cripple our country. Violence and

intimidation have become inherent to strikes. This strike, however, was merely a glimpse into

South Africa’s worst strike in history.47

In mid-February 2011, truck drivers embarked on a nationwide strike that sent shockwaves

around the country as major retailers such as Pick n Pay and Checkers as well as many others

were affected by not receiving their deliveries.48 The strike was marred by violent destruction to

trucks and other property as well as grievous acts of murder and assault on innocent people. This

violence was regarded by the spokesperson of the Road Freight Employers’ Association as being

a tactic employed by strikers to force employers to agree to their demands.49

The strike that has gone down in South African history as the most gruesome and bloodiest in

South African history is that which has been branded the ‘Marikana Massacre’.50 The unrest

began on the 9th of August 2012 as a wildcat strike at the Lonmin mines when miners downed

44 J Maree “Why has the public service in South Africa experienced such devastating strikes and what can be done about it?” 3rd Biennial Labour Relations Conference 22-24 October 2013. 45 ‘A week into the public sector strike’ available at http://section27.org.za/2010/08/ a-week-into-the- public-sector -strike/ , accessed on 10 August 2015. 46 S Pera & S von Tonder Ethics in Healthcare 3rded (2011) 134. 47 A Dhai … et al ‘The public’s attitude towards strike action by healthcare workers and health services in South Africa’ (2011) 4(2) SAJBL 59. 48 S Evans ‘City feels truck strike impact’ Diamond Fields Advertiser 18 February 2011 at 10. 49 G Makhafola, K Moeng & N Moreosele ‘Destruction and death now the norm’ Sowetan 21 February 2011 at 4. 50 S Lukhele ‘The Marikana massacre: where the new South Africa lost its innocence: South Africa-issue in focus’ 2015 Africa Conflict Monitor 69.

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tools.51 The strike was initiated over a wage demand of R12 500 and a complaint over the

hazardous working conditions. The strike was unprotected, which could have given way to the

dismissal of these striking miners. Furthermore, the strike was not led by a union, but by a strike

committee which was acting independently.52 There were numerous reports of violence and

intimidation that had resulted in the loss of life. The violence continued for a week claiming the

lives of at least nine people.53 This violence led to the bloodiest confrontation the country had

experienced post-apartheid.54

On 16 August 2012, police placed razor wire around the peaceful group of strikers and forced

them out through an opening in the wire using stun grenades and tear gas as a weapon of force.55

A special task team opened fire which resulted in the killing of 34 striking miners and fatal

wounding 78 other miners.56 It is imperative to note that the shootings were initiated after

strikers were ordered to disperse. Once shots were fired strikers began running away from

policemen and started scattering. It is reported that many strikers were shot in their backs while

trying to flee.57 The police brutality which robbed bereft families of their fathers, husbands and

brothers left the international world aghast and South Africans mortified. It was abundantly clear

that the use of force contradicted international and national standards.58

51 ‘Marikana Massacre 16 August 2012’ available at http://www.Sahistory.org.za/article/marikana-massacre .16 -august-2012, accessed on 11 August 2015. 52 P Alexander ‘Marikana, turning point in South African history’ (2013) 40(138) Review of African Political Economy 607. 53 ‘Lonmin massacre: a timeline’ Independent Online SA 17 August 2012, available at http://www.iol.co.za, accessed on 11 August 2015. 54 Alexander (note 52 above; 608). 55 A Nash ‘Marikana’s path’ (2015) 41(2) Social Dynamics 387. 56 Alexander (note 52 above; 608). 57 ‘Shot Marikana miners were running away-lawyer’ News24 12 March 2014, available at http://www.news24.com/ SouthAfrica /News/Shot-Marikana-miners-were-running-away-lawyer-20140312, accessed on 11 August 2015, ‘The murder fields of Marikana. The cold murder fields of Marikana’ Daily Maverick 8 September 2012, available at http://www.dailymaverick.co.za/article/2012-08-30-the-murder- fields-of-marikana-the-cold-murder-fields -of-marikana, accessed on 11 August 2015. 58 ‘Marikana violence is a sign of things to come’ Business Day Live 23 August 2012, available at http://wwwbdlive.co.za/opinion/2012/08/23/marikana-violence-is-a-sign-of-things-to-come, accessed on 11 August 2015.

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A highly significant point in terms of this dissertation is the consequent events which followed in

Marikana’s wake. On the evening of 16 August, Lonmin miners on their own accord decided to

continue the unprotected strike.59 This act of bravery or defiance, however one views it, was

recorded as a momentous achievement for the unskilled workers of South Africa as it ultimately

led Government to accede to the miners’ demands.60 The killings of Marikana provided the

impetus which led to a series of unprotected wildcat strikes that lasted for six weeks and

threatened to cripple the country’s economy.61 This resulted in the entire mining industry being

engulfed by illegal strikes, all of which were characterised by violence and intimidation. The

illegal strikes disrupted production at major mines such as Amplats, Goldfields KDC West mine,

Anglo American and Gold One. A common factor amongst all strikers is that they demanded an

exact salary hike and not simply an increased percentage.62

These strikes not only caused major disruptions, but also a loss of production resulting in a

serious knock on the economy. These illegal strikes raised an enormous question mark on the

effectiveness of our dispute resolution system.63 The aftermath of Marikana, however, was not

limited to only the mining industry. There were catastrophic strikes recorded in various other

sectors of the country. There were reports of illegal sporadic work stoppages within the motor

industry, the farming sector and even violent strikes by truckers.64

59 C Chinguno ‘Marikana massacre and strike violence post-apartheid’ (2013) 4(2) Global Labour Journal 160. 60 Alexander (note 52 above, 609). 61 ‘South Africa: One year after the Marikana massacre’ available at http://socialistparty.ie/2013/08/ south-africa -one-year-after-after-the-marikana-massacre, accessed on 11 August 2015. 62 ‘Gold Fields evicts workers as mining strike spreads’ Mail & Guardian 3 October 2012, available at http://mg.co.za/article/2012-10-03-gold-fields-evicts-workers-as-mining-strike-spreads, accessed on 11 August 2015, ‘South African mines hit by wildcat strikes after Marikana police shootings’ The Guardian 12 September 2012, available at http://www.theguardian.com/world/2012/sep/12/south-africa-mines-wildcat-strikes, accessed on 11 August 2015. 63 ‘Socio-economic drivers behind South Africa’s 2012 mining strikes’ available at https://www.goldfields.co.za/reports/annual_report_2012.ana-case7.php., accessed on 11 August 2015. 64 Alexander (note 52 above, 609-610), ‘Western Cape farm strikes: one year on, still a political football’ Daily Maverick 13 October 2015, available at http://www.dailymaverick.co.za/article/2013 -10-28-western -cape-farm -strikes-one- year-on-still-a-political-footbal-l, accessed on 11 August 2015.

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In November 2013, farm workers embarked on an unprotected strike demanding a minimum

wage increase of R69 to R105 as well as that a programme regarding land reformation be

implemented.65 Consequently, an interdict was granted by the Labour Court (LC) preventing the

union, its officials and its members from causing damage to property, entering farms and

intimidating non-strikers. Lastly, it ordered that strikers return to work.66 The strike was

suspended pending negotiations between employers and workers, however, due to its lack of

success the strikers vowed that they would continue until their demands were met.67 The strikers

continued unwaveringly in acts of violence such as setting tyres alight outside a police station

and petrol bombing approximately 3000 wooden fruit bins, the farms and property of the farmers

were destroyed.68 The towns worst affected by the strike were the biggest farming areas of

Graubouw and De Doorns, whose business owners were compelled to close their doors after

their shops were looted. The leaders of these towns admitted that they had lost complete control

of the strike.69 The most horrific event of the farm workers strike was on the 9th of January when

the N1 freeway outside De Doorns was blockaded by around 7000 strikers. The strikers began

veld fires and destroyed buildings along that region and when they tried to move towards the

town, the police tried to push back the strikers through the use of armored vehicles and rubber

bullets. The strikers retaliated by throwing stones at the police.70 It is reported that this strike

claimed the lives of four people, injured 68 police officials and 28 strikers. The expenses

incurred as a result of damages to only police vehicles have been approximately R75 000. The

strike also led to the arrest of 337 people from November 2013.71

On 23 January 2014, platinum mine workers embarked on the largest platinum strike in the

country which threatened to cripple mining giants Anglo American, Lonmin and Impala amongst

other mining companies.72 The unions demanded a 15% wage increase, a one year contract,

65 X Koyana ‘Farmworkers strike ruled unprotected, but defiant Pieterse vows it will resume’ Cape Times 13 November 2013 at 1. 66 ibid 1. 67 B Capazorio ‘Farmworker strike to be renewed this week’ Sunday Independent 6 January 2013 at 4. 68 M Williams & SAPA ‘W Cape farmworker strike violence gains momentum’ STAR 15 January 2013 at 5. 69 B Jordan ‘Spontaneous rebellion has Western Cape in flames’ Sunday Times 13 January 2013 at 2. 70 D Knoetze ‘De Doorns’ darkest day’ Cape Argus 10 January 3013 at 4. 71 J Felix & SAPA ‘Violent protest every second day in Cape’ Cape Times 1 February 2013 at 6. 72 S Tau ‘Mines blamed for prolonging strike’ Citizen 23 April 2014 at 6.

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R1000 housing benefit and the eradication of labour brokers.73 The strike that began in January

2014 only ended in July that same year costing mine owners an estimated R 24 million loss and

employees a R 10.6 million loss in wages.74 There were reports of strikers intimidating non-

strikers and barring them from reporting to work as well as the barricading of roads with rocks.

The police were called in to intervene on numerous occasions and tried to disperse strikers with

water cannons and rubber bullets.75

In September 2015 violent protests by students wreaked havoc at the University of KwaZulu-

Natal (UKZN) campuses across the province over the allocation of financial aid, the intention to

close the Registration Appeals Committee (RAC) and poor student accommodation.76 The strike

was believed to have begun at the Westville campus but soon spread across all UKZN campuses.

The South African Student Congress (SASCO) took full responsibility for initiating the strike

and attempted to gather as many students as possible in support of the strike.77 After a week of

violence, on the 8th of September 2015, an interdict preventing further protest action was granted

by Judge Chetty in the Durban High Court. In terms of the order, students were prevented from

intimidating, harassing, assaulting or causing harm to any person. They were also interdicted

from removing and damaging UKZN property as well as preventing access to the university and

instigating and organizing mass meetings on campus.78 However, this interdict did not deter

strikers as there were reports of damage to buildings and the torching of UKZN vehicles at

Westville campus. The roads around the campus were barricaded with stones preventing any

access to the premises.79 There were also reports of damage to the buildings at residences on the

Edgewood and Pietermaritzburg campus. A bus at the Pietermaritzburg campus was set alight

along with campus vehicles leading to the arrest of two representatives of SASCO.80 The

students at the Pietermaritzburg campus were asked to vacate residence as students went on a

violent rampage throwing stones at cars in the vicinity of the campus and setting rubbish bins,

73 P Dlamini ‘NUMSA digs in its heels’ The Times 2 July 2014 at 1. 74 S Tau ‘More strikes to come’ Citizen 25 June 2014 at 1. 75 A van Vuuren ‘NUMSA joins AMCU in platinum sector strikes’ Sunday Independent 2 February 2014 at 1. 76 L Jansen ‘Violent days at KZN University’ Cape Times 15 September 2015 at 4. 77 S Nsele ‘Howard, PMB Campuses join UKZN students protests’ The Witness 16 September 2015 at 5. 78 S Peters ‘Legal bid to end UKZN protests’ Daily News 23 September 2015 at 5. 79 K Pillay & C Ndaliso ‘Students on rampage’ Daily News 14 September 2015 at 1. 80 N Barbeau ‘UKZN pair bail bid delayed’ Daily News 17 September 2015 at 3.

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metal sheets and cars in the surrounding area of Allan Paton Avenue on fire. The roads in the

vicinity of the campus were barricaded with concrete blocks. The police and ER24 had to be

called in to contain the frenzy and attend to injuries as three security guards were taken hostage

by students and assaulted.81 There were numerous arrests made in connection with these violent

episodes.82 After a protracted battle, students and management reached consensus regarding

some of their issues. However, the light at the end of the tunnel was soon dimmed when students

embarked on a nationwide protest over a 10.5 % increase in fees for 2016 which has become

famous as the ‘fees must fall’ campaign.83 This demand created a spate of riots throughout many

universities in the country such as the Nelson Mandela Metropolitan University, Wits University,

University of Cape Town, Rhodes and Stellenbosch University, Fort Hare University and

Pretoria University.84 There were reports of physical clashes between students and strikers which

led to libraries being overtaken and their closure demanded by angry strikers. At the University

of Pretoria campus, when the university’s vice chancellor did not arrive to address the students,

strikers took to the street causing serious mayhem resulting in a standstill at Hatfield Road.85 The

students demanded a national shutdown of all universities as they marched to the Union

buildings and tried to enter the premises. The scenes reflected those of the apartheid era as police

clashed with protesting students using pellet guns, grenades and tear gas to disperse the crowds.86

After engaging in dialogue with vice chancellors of South African universities and student

representative councils, President Jacob Zuma announced that fees will not increase for the

academic year 2016.87 This, however, was a short lived victory as only one of the issues of

protestors was resolved. The students then embarked on advancing their other demands such as

free higher education and the end to outsourcing of workers at universities.88 There has been

much analysis regarding this nationwide protest that has highlighted key defects within

81 A Umraw, K Pillay, C Pieterse & S Nsele ‘Students told to leave’ The Witness 18 September 2015 at 2. 82 M Nxumalo ‘UKZN students spend holiday in jail’ Daily News 24 September 2015 at 3. 83 C Peterson ‘UCT next target for ire raised by fees’ Cape Times 19 October 2015 at 1. 84 Y Jadoo & S Tau ‘Fee protest boils over’ Citizen 22 October 2015 at 3. 85 V Abreu ‘Hatfield campus chaos’ Citizen 22 October 2015 at 2. 86 R Munusamy ‘Wake-up call’ Weekend Witness 24 October 2015 at 10. 87 C Dodds ‘Fees fall… but it will cost you’ Sunday Tribune 25 October 2015 at 1. 88 C Peterson ‘UCT defends outsourcing worker amid protests’ Cape Times 7 October 2015 at 3.

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Government structures.89 However, Jacob Zuma has warned that these shortfalls are not an

excuse for students’ use of violence and destruction of property in addressing their demands. It is

evident from students’ conduct that this is a key element in obtaining resolutions to their

demands.90

6.3. AN ANALYSIS OF THE ILLEGAL STRIKES AND POSSIBLE

RECOMMENDATIONS

It is abundantly evident from the report on strike activity that there are three prevalent features

which are manifest in each of the strikes that have been discussed. The first characteristic is that

the strikes included participants who are explicitly excluded from engaging in industrial action

by the LRA.91 Secondly, there is an undeniable element of various forms of misconduct such as

violence, intimidation, harassment, assault and death that has become synonymous with the

enforcement of strikes.92 Lastly, there needs to be an analysis on how effective interdicts have

been in controlling unlawful behaviour.93 It is also imperative to note that the report on recent

strike activity included protests and wildcat strikes that exceeded the boundaries of the

employment relationship and were strongly influenced by the strikers’ socio-economic

challenges.94 However, this analysis centers only on the possible pitfalls and recommendations

regarding the legal element of the LRA which may be a contributor to the increased level of

violent strike activity.

89 T Mkhize ‘University no place for violence’ Sunday Tribune 25 October 2015 at 3. 90 J Maromo ‘Zuma urges universities to rein in students who resort to violence’ Cape Times 7 October 2015. 91 ‘HPCSA against striking doctors’ News24.com 28 May 2009 at [1], available at http://www.news24.com/News24/South-Africa/News/0,,2-7-1442_2523713,00.html, accessed 15 September 2015. 92 K von Holdt ‘Institutionalisation, strike violence and local moral orders’ (2010) 72 Transformation: Critical perspectives on Southern Africa 137. 93 C O’Regan ‘Interdicts restraining strike action- Implications of the Labour Relations Amendment Act 83 of 1988 (1988) 9 ILJ 959 at 959. 94 Y Dominguez-Whitehead ‘Executive university managers’ experience of strike and protest activity: A qualitative case study of a South African university’ (2011) 25(7) SAJHE 1310.

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6.3.1. ILLEGAL STRIKING BY EMPLOYEES WHO ARE PROHIBITED BY THE LRA

In terms of the first issue, the LRA seeks to control strike action within essential services by

explicitly prohibiting employees within essential and maintenance sectors from engaging in

strike activity.95 Employees within these sectors are required to refer their disputes for arbitration

and adjudication rather than having to resort to industrial action.96 In addition to the LRA

prohibiting striking of workers in essential services, it indicates the possible punishment of

illegal strikers which can be effected either through dismissal or a final warning.97 The LRA has

also stipulated that such dismissal must follow a guideline on how it should be carried out.98 It

does not, however, indicate that the employer is compelled to execute discipline against such

behavior.99

The LRA does not specifically stipulate any procedures for enforcing discipline on healthcare

workers who engage in strikes as this is regulated by the respective regulations healthcare

workers are required to adhere to. The National Council of Nurses compels all nurses to comply

with a code of conduct and stipulates the punishment on nurses who do not comply.100 The code

of conduct requires that nurses should at all times maintain an environment that is conducive to

the health and welfare of their patients that is “free from neglect and malpractice and free of

harassment and intimidation”.101 In light of the recent public sector strikes as discussed above,

nurses were in severe breach of this ethical principle, as industrial action by nursing staff was a

violation of their patients’ right to non-violent and uninterrupted treatment.102 The violence and

95 The LRA; s 65 (1)(d). 96 Nene & others v Durban Transport Management Board (1992) 13 ILJ 684 (IC), Scholtz v Stadsraad van Mangaung (NH 11/2/5494, 23 January 1992), Sibidli & others v Western Province Preserving Co Ltd (NHE 11/2/106 (EL), 4 March 1992), Transport & Allied Workers & another v Putco Ltd (NH 11/2/5494, 23 January 1992). 97 N P Nala Strategies for curbing strike action by nurses in public institutions, South Africa (unpublished Phd thesis, University of South Africa, 2014) 33. 98 Code of Good Practice: Dismissals; item 6. 99 M Oliver ‘The dismissal of striking workers: Procedural requirements and other aspects’ 1993 De Rebus 800 100 M Muller ‘Strike action by nurses in South Africa: A value clarification’ 2001 Curations 42-43. 101 The South African Nursing Council; (1992) chap iv. 102 Muller (note 100 above; 38).

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intimidation used by nurses during strike activity do not portray the values entrenched by the

Nursing Council.103

It must be noted that doctors are also obliged to adhere to an ethical guideline enshrined by the

Ethical Rules of Conduct for Practitioners registered under the Health Professions Act 56 of

1974 (hereinafter referred to as the Health Professions Act).104 The Health Professional Council

of South Africa (HPCSA), which has been established under the Health Professions Act, acts as

a watchdog within the professional field of doctors and is empowered to investigate matters of

misconduct even if they have not been referred by the KwaZulu-Natal (KZN) Health

Department.105 However, it is thus surprising that not one of the 16 ethical guidelines entrenched

by the HPCSA indicates that strike action is deemed to be unethical.106 This alone indicates that

there is a failure to reflect the prohibitions of the LRA in ethical guidelines that regulate the

conduct of healthcare workers.107 The failure of the HPCSA to indicate that the participation in

strike action is regarded as misconduct together with the withdrawal of charges against doctors

by the KZN Health Department, conveys a latent attitude towards enforcing disciplinary

proceedings against them.108 This could be a contributing factor as to why healthcare workers

lack deterrence from participating in strikes, as if penalties are not enforced against healthcare

workers for participating in strikes then there would be no discouragement from engaging in

such conduct.109

The problem with using dismissal as a weapon of deterrence against illegal strikes is that once a

violent strike is over there is so much instability that the employer is afraid of contributing

further to the volatile atmosphere that they do not sanction the unlawful conduct of the

strikers.110 Moreover, this questions the practicality of the provision entrenched in the LRA as it

103 P J Kunene Strikes by nursing personnel: A challenge for nurse managers in KwaZulu-Natal Province (Unpublished M.Cur Degree, University of Zululand, 1995) 29. 104 GN R68 of 66 R 717, 4/8/2006; 7. 105 L London ‘HPCSA disciplinary action-‘custodian of professional morals?’ (2010) 100(11) SAMJ 692. 106 G A Ogunbanje & D van Knapp ‘Doctors and strike action: Can this be morally justifiable?’ (2009) 51 Fam Pract 307. 107 R Gillon ‘Medical ethics during a period of unrest’ 1986 S Afr Med J 843. 108 London (note 105; 692). 109 ibid 692. 110 M Maeso ‘Strikers break law with impunity’ Business Day 12 September 2011 at 2.

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allows for the dismissal of hundreds of doctors, nurses and law enforcement officers who offer

services that are vital and without these services our society would suffer irreparable harm.111

6.3.2. THE INHERENT ATTRIBUTE OF VIOLENCE IN STRIKE ACTIVITY

The second issue which can be extracted from the report on strike activity is that of the violence

and criminal behavior which is inherent in strike action. The most gruesome and horrific acts of

violence which have been equated with the Marikana strike have been the long winded case of

Food & Allied Workers Union obo Kapesi & others v Premier Foods Limited t/a Blue Ribbon

Salt River.112 The discussion of the pertinent issues that this case raises will be dealt with after an

explanation of when the matter was heard in the LC under Basson J. Thereafter, the explanation

of Kapesi supra will continue to when the matter was heard in the Labour Appeal Court (LAC)

under Landman AJA and then to the LC under Steenkamp J where the matter was brought to the

LC on a second occasion. In the initial proceedings in the LC, FAWU called for a protected

strike as a result of failed negotiations. The protected strike, however, was flawed by heinous

acts of violence and dreadful criminal conduct.113 It is alleged that non-strikers received death

threats, their homes and cars were fire-bombed, witnesses of the violence were intimidated and

one in particular was murdered after an identification of the perpetrators. There was also a

conspiracy to have the director of the company assassinated. The employer obtained an interdict

preventing such violence and after an agreement was reached, the strikers returned to work. 114

Subsequently, strikers were suspended pending a disciplinary hearing regarding their conduct

during the strike. On the day of the disciplinary hearing, the employer’s key witness did not

arrive. The employer then decided on a basis of lack of evidence that it would proceed with the

matter as a s 189 process.115 It is imperative to distinguish, at this point, that in terms of a

disciplinary hearing, the employer is required to prove the guilt of the employees on the basis of

111 R Hebdon ‘Behavioural determinants of public sector illegal strikes: Cases from Canada and the U.S’ (1998) 53(4) Industrial Relations 668. 112 Food & Allied Workers Union obo Kapesi & others v Premier Foods Limited t/a Blue Ribbon Salt River (2010) 31 ILJ 1654 (LC). 113 Food & Allied Workers Union obo Kapesi supra note 112 at 1666[6]. 114 Food & Allied Workers Union obo Kapesi supra note 112 at 1666[6]. 115 Food & Allied Workers Union obo Kapesi supra note 112 at 1656[1].

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their misconduct. The process entrenched in s 189 does not require the employer to prove fault

on the part of the employees. This was extremely important as without the key witness to testify

at the disciplinary hearing the employer would not have been able to prove the fault of the

strikers who engaged in misconduct.116 A notice was sent to the union informing it of the

intention to effect the dismissal of the striking employees as contemplated by s 189 proceedings

and due to the fact that it could not engage in disciplinary hearings for lack of oral evidence.

There were meetings under the auspices of the CCMA which led to the dismissal of the

suspended employees. The union then brought an unfair dismissal application against the

employer.117 The union argued that this dismissal was procedurally and substantively unfair. The

employer argued that it was compelled to resort to dismissal as the violence committed during

the strike threatened the running of the business and necessitated the retrenchment of the

employees. The case of the employer, however, did not succeed in the LC, as there was no case

made regarding the link between the misconduct and the operational requirements.118

The first issue which Basson J considered in the LC was whether hearsay evidence could be used

in disciplinary proceedings.119 This issue is pertinent as it illustrates how the LRA could be

interpreted to ensure effective control of strikes. The participation of employees in illegal strikes

permits an employer to effect discipline in the form of dismissal. However, in order to do so the

employer is required to prove fault on the part of the employee during a disciplinary hearing.120

This may be problematic as witnesses who have already experienced threats and harassment are

too scared to provide oral evidence for fear of further victimization as was evident in the case of

Kapesi supra.121 This recommendation conveys how the LC could deal with practical issues of

intimidation and harassment, as it is usually difficult during a violent strike to identify

perpetrators through oral evidence.

116 A Rycroft ‘The legal regulation of strike misconduct: The Kapesi Decisions (2013) 34 ILJ 859 861. 117 Food & Allied Workers Union obo Kapesi supra note 112 at 1656. 118 Food & Allied Workers Union obo Kapesi supra note 112 at 1656. 119 Food & Allied Workers Union obo Kapesi supra note 112 at 1672[40]. 120 R I Abrams & D R Nolan ‘Toward a theory of ‘Just cause’ in employee discipline cases’ (1985) 3 Duke Law Journal 595. 121 Food & Allied Workers Union obo Kapesi supra note 112 at 1666[6].

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Basson J referred the court to Avril Elizabeth Home for the Mentally Handicapped v CCMA &

others,122 to illustrate an appropriate guideline for conducting a disciplinary hearing. It was

stated that the previous LRA prescribed a process for such hearings that was akin to the

requirements of a criminal trial.123 The new LRA does not confer such “onerous procedural

requirements” as was indicated in the draft Bill that stated:

“The draft Bill requires a fair, but brief, pre-dismissal procedure. . . . [It] opts for this more flexible, less onerous, approach to procedural fairness for various reasons: small employers, of whom there are a very large number, are often not able to follow elaborate pre-dismissal procedures; and not all procedural defects result in substantial prejudice to the employee.”124

Therefore, the court stated that it was unnecessary to comply with all the requirements which are

characteristic of the case of a criminal trial. This would effectively exclude the rules pertaining to

the law of evidence.125 Consequently, a Commissioner is obliged to apply a standard that does

not require that evidence be proved on any other standard other than on a balance of

probability.126 This essentially allows one to deduce that pre-dismissal hearings are entitled to be

flexible as was emphasised in Food & Allied Workers Union & others v C G Smit Sugar Ltd,

Noodsberg.127 The learned Judge De Kock M stated that the reason for this was that fair hearings

require that all evidence be presented.128 There are situations where the interests of the parties

concerned and the interests of fair labour relations necessitate that procedure are flexibly

complied with, such as when there is real fear of danger or intimidation then an employee should

not be required to face his or her perpetrator. In such circumstances, it is permissible for

witnesses to testify behind camera.129 There are numerous precedents which postulate that fear,

intimidation, threats of danger and potential harassment are valid reasons for an employee to be

exempted from providing oral evidence.130 The witnesses in Kapesi supra had provided written

statements indicating the violent conduct of individuals but were unwilling to testify because 122 Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 27 ILJ 1644 (LC). 123 Avril Elizabeth Home supra note 122 at 1651J-1652A. 124 Avril Elizabeth Home supra note 122 at 1652E-F. 125 Avril Elizabeth Home supra note 122 at 1652G. 126 Potgietersrus Platinum Ltd v CCMA & others (1999) 20 ILJ 2679 (LC), Markhams (A Divion of Foshini Retail Group (Pty) Ltd) v Matji NO & others [2003] 11 BLLR 1145 (LC). 127 Food & Allied Workers Union & others v C G Smith Sugar Ltd, Noodsberg (1989) 10 ILJ 907 (IC). 128 Food & Allied Workers Union & others v C G Smith supra note 127 at 910D-E. 129 Food & Allied Workers Union & others v C G Smith supra note 127 at 910D-E. 130 Shishonga v Minister of Justice & Constitutional Development & another (2007) 28 ILJ 195 (LC), Hlongwane & others v Rector: St Francis College & others 1989 (3) SA 318 (D), Ngobo v Durban Transport Management Board (1991) 12 ILJ 1094 (IC), Marutha v Sember CC T/A Review Printers, Pitersburg (1990) 11 ILJ 804 (IC).

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“they were afraid for their lives, or being assaulted or whatever the case may be”.131 This is

highly significant as the foundation of the employer’s case in proceeding with the process

prescribed by s 189 was due to the belief that the employer possessed insufficient oral evidence,

without which he would be incapable of proving the guilt of the strikers.132

However, in Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Workers Union

& another,133 the LAC stated that there were two dire consequences that would follow if the

court did not permit the admission of evidence where employees were unable to give oral

evidence due to fear, intimidation and the threat to their lives.134 Firstly, an employer would not

be able to prove the employee’s guilt even though the circumstances clearly indicate that they are

guilty. Secondly, such failure would permit wrongdoers from engaging in an array of criminal

activity with the security against liability if they can scare off witnesses from testifying or even

prevent testimony by having witnesses murdered.135 The court further stressed that this was a

type of evil, which if permitted within our society would “destroy the very foundations on which

our society is built”.136

The judgments discussed above are in line with the procedure that the LC has approved in

National Union of Metalworkers & others v Deelkraal Gold Mining Co Ltd,137 which can be

used in situations of fear of intimidation and harassment that compel evidence to be submitted in

camera. The court provided a three stage approach that should be followed. The first stage is

initiated before an open court or arbitration to determine whether the safety of the lives of such

witnesses necessitate the matter to proceed to the next stage.138 The second stage is when the

witnesses provide evidence in camera during which the witnesses will be cross-examined by the

judge, adjudicator or union representative. This stage would not include any hearsay evidence 131 Food & Allied Workers Union obo Kapesi supra note 112 at 1666[24]. 132 Food & Allied Workers Union obo Kapesi supra note 112 at 1662G. 133 Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Workers Union & another (2000) 21 ILJ 1315 (LAC). 134 Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Workers Union supra note 133 at 1321C. 135 Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Workers Union supra note 133 at 1321D. 136 Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Workers Union supra note 133 at 1321D. 137 National Union of Mineworkers & others v Deelkraal Gold Mining Co Ltd (1994) 15 ILJ 1316 (IC). 138 National Union of Mineworkers & others v Deelkraal Gold Mining Co Ltd supra note 137 at 1318.

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and if the witnesses have provided sufficient reason to believe that there is a valid fear of

intimidation, then the matter will proceed to the next stage. The third stage is where the witness

would provide evidence in camera subject to the cross-examination of the union’s

representatives.139 Even though this would help assist the employer’s case in bringing criminals

to book, it must be noted that there is a dire moral issue which arises from this case, which is that

should employees be expected to give evidence at the cost of their own lives, as it is common

knowledge that in camera proceedings do not provide complete certainty of anonymity.140

In Kapesi supra, Basson J relied upon the judgments discussed above in concluding that the

employer would have been able to proceed with a disciplinary hearing based on the reasoning

that excluding hearsay evidence would give perpetrators impunity over heinous crimes.141 The

primary reason for permitting hearsay evidence was that the interests of justice necessitate that

society is not left to the evils of wrongdoers without an aid to the injustice committed against

them as was the norm during apartheid.142 In the past “the majority of the population was

subjected to the tyranny of the State, [therefore] we cannot now be subjected to the tyranny of

the mob”.143 These sentiments were further echoed by Van Niekerk J in Ram Transport SA (Pty)

Ltd v SA Transport & Allied Workers Union & others.144 This case centered on an unprotected

strike that was also marred by acts of violence and destruction to the employer’s property as well

as that of non-striking employees. The court in this regard provided a good illustration as to how

the courts should deal with acrimonious conduct by strikers when it stated that if strikers engage

in acts of grievous criminal misconduct then their actions cannot go unpunished but must be

dealt with by exacting the severest penances that a court of law is permitted to enforce.145

139 National Union of Mineworkers & others v Deelkraal note 137 at 1318. 140 Rycroft (note 116; 869). 141 Food & Allied Workers Union obo Kapesi supra note 111 at 1675G-H. 142 J Stemmet “In case of emergency’: South African ststes of emergency, CA. 1985-1988: Synopsis and chronology’ (2015) 40(1) Journal for Contemporary History 59. 143 SA Transport & Allied Workers Union v Garvas & others (2011) 32 ILJ 2426 (SCA) at 50. 144 Ram Transport SA (Pty) Ltd v SA Transport & Allied Workers Union & others (2011) 32 ILJ 1722 (LC) 145 Ram Transport SA (Pty) Ltd supra note 144 at 1723C-D.

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The second issue that Basson J in Kapesi supra had to decide on was whether the employer

could successfully proceed with the retrenchment of the employees via s 189. In this regard the

court highlighted that this process will only succeed if it can be shown that the dismissal was due

to the “continued economic viability” of the business. The conduct of the employees must have

proven that it was impossible for the business to continue.146 A parallel was drawn between the

present case and Tiger Food Brands Ltd t/a Albany Bakeries v Levy NO & others.147 The

company was dealing with severe financial loss and appointed a new manager to address the

issue. All proposals to improve production were obstinately opposed by the workforce. This

opposition then became violent with death threats to managers as well as attempts to assassinate

the new manager and one employee had shots fired at his home. As a result of the inability to

individually identify the perpetrators, as was also the situation in Kapesi supra, the employer

could not effect disciplinary proceedings against the employees.148 The LC stated that due to the

threats on the managers’ lives they were unable to perform their tasks in a safe working

condition. This effectively would mean that the company would be unable to turn the business

around in order for it to be viable.149 The LC thus concluded that there was an economic reason

for dismissal. This would satisfy the requirement of an operational reason. However, this does

not mean that any conduct would give rise to the justification of proceeding with s 189

proceedings.150 The facts of every case would determine whether this was possible. In Tiger

Food Brands supra, the economic turnaround of the business was necessary as it was already

making a loss and the proposals implemented by the managers were indispensable for this very

purpose. If the managers could not implement the plans in a safe environment then the business

could not be salvaged.151 The decision in Tiger Food Brands supra, indicate that s 189 may be

used as a method for dismissing employees who engaged in misconduct during a strike such as

threats to management, attempts of assignation and even fire shots at employees homes which is

similar to the misconduct in Kapesi supra, but the ‘economic viability’ of a business as being a

reason for dismissal as an operational requirement must be proven.152

146 Food & Allied Workers Union obo Kapesi supra note 111 at 1671F-G. 147 Tiger Food Brands Ltd t/a Albany Bakeries v Levy NO & others (2007) 28 ILJ 1827 (LC). 148 Tiger Food Brands Ltd t/a Albany Bakeries v Levy NO & others supra note 147 at 1828[2]-[9]. 149 Tiger Food Brands Ltd t/a Albany Bakeries v Levy NO & others supra note 147 at 1835[38]. 150 Tiger Food Brands Ltd t/a Albany Bakeries v Levy NO & others supra note 147 at 1835[39]. 151 Tiger Food Brands Ltd t/a Albany Bakeries v Levy NO & others supra note 147 at 1835[39]. 152 Food & Allied Workers Union obo Kapesi supra note 112 at 1680A.

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The LC has mentioned that even if the misconduct causes the financial loss, this would not

vitiate that the retrenchment was to rescue the business from the financial loss.153 In SA

Commercial Catering & Allied Workers Union & others v Pep Stores,154 there was an

unexplained shrinkage of stock in two of its branches and the failure to protect the stock by

employees under whose care the stock was placed in. This compelled the employer to close the

branches pending facilitation on whether there was another way in which the business could be

saved and if one could not be found then the employer would have to resort to retrenchment as a

means of saving the business.155 The learned Judge in this regard stated that this was clearly an

instance where the employer attempted to consider alternate methods of saving the business

rather than resorting to retrenchment. The retrenchment in this instance would fall squarely on

the employer’s attempt to ensure the economic viability of the business. Thus, the learned Judge

concluded that this would satisfy operational requirements.156 The cases of both Pep Stores supra

and Tiger Food Brands supra, illustrate that the misconduct of the employees must have been the

basis for saving the “life of the enterprise”.157

However, in Kapesi supra, the employer had based his entire case on the fact that misconduct

had taken place in the workplace and it was impossible for disciplinary proceedings to succeed

due to a lack of evidence against perpetrators.158 The court in its reasoning was not persuaded

that the employer had thus proved that the misconduct was a reason for the economic viability of

the business, as the applicant did not center its case on this justification. Hence the dismissals

were held to be both substantively and procedurally unfair.159 The court did mention that the

continuance of the employment relationship was highly unlikely based on all the violence that

had occurred and declined to reinstate the employees, but nevertheless awarded compensation in

153 Food & Allied Workers Union obo Kapesi supra note 112 at 1680F. 154 SA Catering & Allied Workers Union & others v Pep Store (1998) 19 ILJ 1226 (LC). 155 SA Catering & Allied Workers Union & others v Pep Store supra note 154 at 1232[26]. 156 SA Catering & Allied Workers Union & others v Pep Store supra note 154 at 1236[49]. 157 Chauke & others v Lee Service Centre CC t/a Leeson Motors (1998) 19 ILJ 1441 (LAC). 158 Food & Allied Workers Union obo Kapesi supra note 112 at 1678A. 159 Food & Allied Workers Union obo Kapesi supra note 112 at 1686C.

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the form of 12 months salary.160 In Kapesi supra, Basson J highlighted two very significant

issues that pertain to misconduct during strikes. The first is that disciplinary hearings can be

successfully used even in the absence of oral evidence from victims who are too scared to testify.

Secondly, that s 189 can be used as a method of dismissal where strikers engaged in violence but

only if an economic rationale has been established.161

The decision handed down by Basson J, however, was merely the beginning of a protracted legal

process. As a result of this decision, the union took the matter on appeal. Landman AJA

considered whether the employer had applied the selection criteria of the alleged offenders

objectively and without bias.162 The LAC reasoned that the affidavits and statements did not

indicate the link between the individual perpetrators to the acts of misconduct, but rather the

identification was connected to operational requirements. There had to have been a personal

identification of perpetrators so as to prove that the identification was made objectively.163 As a

result of not being able to identify the perpetrators, Landman AJA could not reason that the

employment relationship could not continue if these retrenched employees were not identified as

the wrongdoers. The reasoning of Landman AJA was very different to the judgment of Basson

J.164 The LC was compassionate towards the possibility that the employment relationship could

be broken by horrific acts of misconduct, even if the identity of the perpetrators who committed

the misconduct has not been identified. The LRA also envisages such a possibility which

supports the decision of Basson J as s 193(2)(b) of the LRA permits the dismissal of employees

where the employment relationship has become intolerable.165 Landman AJA however was not

willing to consider s 193(2)(b) with regard to the grievous misconduct of the employees, but

rather ordered the reinstatement of the employees retrospectively of five years.166

160 Food & Allied Workers Union obo Kapesi supra note 112 at 1686C. 161 T Gandidze ‘Dismissals for operational requirements’ (2007) 11 LDD 83. 162 Food & Allied Workers Union obo Kapesi supra note 112 at 1779H-I. 163 Food & Allied Workers Union obo Kapesi supra note 112 at 1780A-B. 164 Food & Allied Workers Union obo Kapesi supra note 112 at 1780C-D. 165 Rycroft (note 116; 864). 166 Food & Allied Workers Union obo Kapesi supra note 112 at 1780D.

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However, upon the reinstatement of the dismissed employees, the employer immediately

suspended the employees and instituted disciplinary hearings. This was met with an application

by the union interdicting the employer from the disciplinary proceedings. The urgent application

was then heard at the LC with the intention to begin proceedings afresh.167 Steenkamp J stated

that it was unfair to pursue proceedings on the basis that no new information had surfaced.

Furthermore, it stated that it was unfair that since it had decided on a specific course of action

and had failed to then embark on another course using the same evidence. Only if new evidence

surfaced could there be a justification for starting the proceedings again.168 It must be noted that

this was an application for an interdict and the element of ‘irreparable harm’ had to be proven,

the LC clearly stated that this requirement had not been satisfied but nevertheless permitted the

granting of the interdict.169 Steenkamp J stated that even though this judgment was in line with

the legal principles, it had brought “a sense of disquiet” to the court as those who had engaged in

grievous acts of violent misconduct have walked away from their wrongdoings without suffering

any adverse consequences of the law.170 Although the court was of this view, it failed to provide

any remedies that the employer could have followed to rectify the procedural and substantive

defects in choosing the incorrect procedure.171 It is highly regrettable that the LC has made this

judgment without providing recourse to the actual victim of the violent strike as there is authority

that permits making an exceptional case to allow a second disciplinary hearing that would have

ensured that the perpetrators of the violent misconduct did not go unpunished.172 The case of

Kapesi supra illustrates that there is a deficiency in the interpretation of violent strikes as courts

need to create a balance between the tyranny of the strikers and legal principles to provide an

opportunity for victims of strike violence to correct procedures under the direction of the

court.173

167 Food & Allied Workers Union obo Kapesi supra note 112 at 1780E-F. 168 Food & Allied Workers Union obo Kapesi supra note 112 at 1780G-H. 169 Food & Allied Workers Union obo Kapesi supra note 112 at 1780I. 170 Food & Allied Workers Union obo Kapesi & others v Premier Foods Limited t/a Blue Ribbon Salt River supra note 112 at 1182E-G. 171 Food & Allied Workers Union obo Kapesi supra note 112 at 1182A-B. 172 BMW v Van der Walt (2000) 21 ILJ 113 (LAC) and Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC), Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89 (LAC), Semenya & others v CCMA & others (2006) 27 ILJ 1627 (LAC). 173 Rycroft (note 116; 870).

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In order to exact the severest of penalties and provide a deterrence to misconduct during strikes,

the court is also entitled to hold the union and their representatives financially responsible for

gross misconduct during a strike, as was considered by the LC in Tsogo Sun Casinos (Pty) Ltd

t/a Montecasino v Future of SA Worker Union & others.174 The case involved a protected picket

following failed wage negotiations. Even though picketing rules had been formulated, the picket

was tarnished by acts of criminal conduct. These included the emptying of dirt bins outside the

employer’s property, burning tyres on the roads, blocking roads, and throwing bricks at police

vehicles. There were also accounts of assault to patrons and non-striking employees, theft,

malicious damage to the employer’s property and the property of patrons of Montecasino.175 It is

imperative to note that the applicant notified the union and the employees that they were in

material breach of the picketing rules although the union made no attempt to restrain its members

and maintain order throughout the duration of the strike.176 An interim order was obtained by the

applicant preventing the strikers from engaging in such unlawful conduct and before the return

day of the final order, the applicants supplied supplementary affidavits asking that the union and

its members be held liable for the costs incurred by their actions as there was no denial that they

had engaged in such conduct. The respondents opposed the application on the basis that they

were not liable.177

The LC analysed the arguments presented by the respondent and stated that a costs order would

not have an effect on the continued relationship between the employer and the employees for

purposes of collective bargaining. The court went on to emphasise that by awarding such costs it

would serve as a lesson to the respondents that collective bargaining is not authorisation to

engage in collective brutality. It would also serve as a warning to the union and its officials who

failed to intervene and that proactive measures are required to take responsibility of the

irresponsible actions of its members.178 An important remark made by Van Niekerk J was that

collective bargaining and dispute resolution extends beyond the workplace and into the public

174 Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union & others (2012) 33 ILJ 998 (LC). 175 Tsogo Sun Casinos (Pty) Ltd t/a Montecasino supra note 174 at 1001[4]. 176 Tsogo Sun Casinos (Pty) Ltd t/a Montecasino supra note 174 at 1001[5]. 177 Tsogo Sun Casinos (Pty) Ltd t/a Montecasino supra note 174 at 1001[3]. 178 Tsogo Sun Casinos (Pty) Ltd t/a Montecasino supra note 174 at 1002[13].

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sphere.179 It is for this reason that the courts need to address misconduct as this conduct also

extends to the infringement of the rights of the general public when innocent members of society

are assaulted, hurt or have their property damaged.180 The severity of the misconduct was further

highlighted by Van Niekerk J who elucidated that the court will always step in to protect the

right to strike and picket, however, the purpose of these rights are blackened when individuals

further these rights through means of appalling acts of violence. In such instances, to protect the

strike would be tantamount to the protection of violence.181 The valued judgment handed down

by the court stressed that the court’s disapproval of such heinous acts of violence necessitates the

severest punishment to deter individuals like the respondents who commit such acts and their

union and its officials who fail to prevent and control the actions of their members.182 It is

submitted that this judgment affirms the judgment held by the court in Chemical Energy Paper

Printing Wood & Allied Workers Union & others v Metrofile (Pty) Ltd,183 where the learned

judge described violence during strikes as “abhorrent and completely unacceptable”184 and stated

that the “right to engage in a strike does not give employees the license to engage in

misconduct”.185

The CC made a landmark decision regarding the court’s stance against trade unions who initiate

gatherings that turn violent in SA Transport & Allied Workers Union & another v Garvas &

others.186 In Garvas supra SATAWU called for a protest march following the violent and

prolonged security strike of 2006. This protest, however, turned violent and riotous. The protest

caused extensive destruction to vehicles and property of shop owners to the value of

approximately R 1.5 million.187 The respondents, namely two street traders, one shop owner and

five vehicle owners whose cars had been vandalizsd as a result of the riot, instituted a claim for

compensation in terms of the Regulation of Gatherings Act 205 of 1993 (herein after referred to

179 Tsogo Sun Casinos (Pty) Ltd t/a Montecasino supra note 174 at 1002[13]. 180 Growthpoint Properties Ltd v SA Commercial Catering & Allied Workers Union & others (2010) 31 ILJ 2539. 181 Tsogo Sun Casinos (Pty) Ltd t/a Montecasino supra note 174 at 1004[13]. 182 Tsogo Sunn Casinos (Pty) Ltd t/a Montecasino supra note 174 at 1004[14]. 183 Chemical Energy Paper Printing Wood & Allied Workers Union & others v Metrofile (Pty) Ltd (2004) 25 ILJ 231 (LAC) 184 Chemical Energy Paper Printing Wood supra note 183 at 245[45]. 185 Chemical Energy Paper Printing Wood supra note 183 at 246F. 186 SA Transport & Allied Workers Union & another v Garvas & others (2012) 33 ILJ 15 93 (CC). 187 SA Transport & Allied Workers Union supra note 186 at 1598[1].

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as the RGA) which conferred liability on the organisers of the gathering if any damage

occurred.188

The union contended that s 11(1) of the RGA which held organiser’s liable for damage during a

gathering was unconstitutional as it conflicted with the constitutional right to peacefully

assemble, demonstrate, picket and make presentations as enshrined in s 17 of the Constitution.189

It must be noted that the court analysed the term ‘reasonably foreseeable’ in terms of the RGA.

However, for purposes of elucidating the Constitutional Court’s (CC) approach on violence, the

discussion of this case will focus only on the argument that s 11(1) the RGA was

unconstitutional.190 The CC in this regard held that the right to assemble is not an absolute right,

but rather it is conditional on the basis that it takes place in a peaceful and unarmed manner.

Where there is a riot it would mean that there was a prevalent feature of violence which excludes

the application of s 17 of the Constitution.191

The decision in Garvas supra was fundamentally based on the unwarranted use of violence

during the gathering under the authority of the union. The CC noted that the implications of s 11

would hold organisers liable for damages caused during a demonstration and would make

organising gatherings costly. However, the court held that s 11 was justified. However, the CC

reasoned that this was justified in terms of s 36 of the Constitution.192 In arriving at its decision

the CC stated that s 11 served a significant purpose, namely that it was designed to safe guard

members of our society who have been victims of riotous conduct and lack the means and ability

to identify and take action against the perpetrators.193 Where a gathering causes danger to the

health, life and livelihood of the defenseless then organisers of such gatherings must be held

responsible for initiating the events that lead to the loss incurred.194 The CC held that the extent

of the limitation on the right to assemble was justified even though it had a dampening effect on 188 SA Transport & Allied Workers Union supra note 186 at 1601[18]. 189 The Constitution; s 17. 190 SA Transport & Allied Workers Union supra note 186 at 1601[18]. 191 SA Transport & Allied Workers Union supra note 186 at 1601[18]. 192 SA Transport & Allied Workers Union supra note 186 at 98I-99E. 193 SA Transport & Allied Workers Union supra note 186 at 102A-B. 194 SA Transport & Allied Workers Union supra note 186 at 102C.

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s 17 of the Constitution.195 The limitation does not contradict s 17 of the Constitution but merely

provided stricter guidelines for its enforcement in order to prevent injury or damage to property.

This limitation also acts as deterrence to unions, as it holds unions accountable when damage

occurs.196

It must be highlighted that the judgment of Garvas supra elucidates the tradition of violence

which has been inculcated into strikers by decades of confrontations with the apartheid

government.197 Adequate cognisance needs to be given to the fact that South Africa has moved

away from repressive laws198 and has unequivocally welcomed legislation that allows strikers

and protestors to freely demonstrate their concerns in the public domain.199 However, emphasis

must be placed on the fact that these entitlements are subject to their peaceful enforcement, as

“rights and responsibilities go hand in hand”.200 The reason for this restriction is primarily to

protect the health, safety and maintenance of public order.201 This submission is further enforced

by international standards cited by the CC in Garvas supra, where the European Court of Human

Rights expressed its view in Ziliberberg v Moldova202 by stating that:

“An individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behavior”.203

It is abundantly clear that the right to engage in protests and strikes is conditional on the peaceful

conduct of strikers as those who engage in criminal behavior will not be protected.204 However,

this does not mean that if the protest or strike causes inconvenience that such conduct will render

195 SA Transport & Allied Workers Union supra note 186 at 102F. 196 SA Transport & Allied Workers Union supra note 186 at 102G-H. 197 K von Holdt & P Alexander ‘Collective violence, community protest and xenophobia’ (2012) 43(2) South African Review of Sociology 106. 198 Riotous Assemblies Act of 1982; s 74, the Suppression of Communism Act of 1956; s 17. 199 L Sinwell ‘Is ‘another world’ really possible? Re-examining counter-hegemonic forces in post-apartheid South Africa’ (2011) 38(127) Review of African Political Economy 62. 200 M Matisa ‘Teachers’ right to strike vis-à-vis learners’ right to education-justice for one is an injustice for the other’ (2013) 12(4) Interim: Interdisciplinary Journal 22. 201 Cisse v France ECHR (Application No 51346/99) (9April 2002) at para 44. 202 Ziliberberg v Moldova ECHR (Application NO 61821/00) (4 May 2004). 203 Ziliberberg v Moldova ECHR supra note 202 at para 2. 204 Ciraklar v Turkey, 80 DR 46 (1995) (Application No 19601/92).

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a union liable.205 It will only be considered unlawful if it excessively infringes the rights of

others.206 Where individuals are aware of what the law requires, then they are obliged to conform

their conduct to adhere to such requirements, therefore there is no cause for engaging in

violence.207

As discussed in the judgments above, the attitude of the court towards misconduct is one of

intolerance which is further enforced by awarding interdicts to prevent employers from suffering

irreparable harm caused by the violent actions of employees and their representatives.208

However, the value of a piece of paper enforced by a court of law must be analysed in light of

blatant disregard towards interdicts that purport to prohibit the continuation of criminal

behavior.209

6.4. ANALYSIS OF THE EFFECTIVENESS OF INTERDICTS WITH RESPECT TO

ILLEGAL STRIKES

One of the ways in which employers can seek to maintain order during a strike that is

characterised by violence is by applying for an interdict.210 In respect of interdicts, there have

been many incidents where employers have applied for and obtained urgent interdicts prohibiting

strikers.211 However, more often than not, interdicts granted by the LC are completely

205 G v Federal Republic of Germany, (1989) 60 DR 256. 206 The Gypsy Council v United Kingdom, Judgment of the Court, 14 May 2002, Nicol and Selvanayagam v United Kingdom, Judgement of the court, 11 January 2001. 207 RSA v Hugo [1997] 6 BCLR 708 (CC). 208 A Rycroft ‘Being held in contempt for non-compliance with a court interdict: In2food (Pty) Ltd v Food & Allied Workers Union & Others (2013) 34 ILJ 2589 (LC)’ (2013) 34 ILJ 2499 at 2499. 209 M Olivier ‘Lawful and unlawful strikes’ (1993) 303 De Rebus 194. 210 M M Mamabolo The dismissal of unprotected strikers and the audi alteram partem rule (unpublished LLM thesis, University of the North-West, 2006) 4. 211 ‘Freight employers to seek interdict against strike violence’ BDLive 28 September 2012, available at http://www.bdlive.co.za/business/transport/2012/09/28/freight-employers-to-seek-interdict-against-strike-violence, accessed on 5 November 2015.

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disregarded. The intervention of security officials from both the police and defense force have

proven futile and businesses as well as society bear the brunt as violence continues.212

The compliance to orders of court is essential to the maintenance of order and peace within

society as was illustrated in Modise & others v Steve’s Spar Blackheath.213 The case centered on

a failure to adhere to an urgent interdict which was granted by the SCA declaring the strike

unprotected. The LAC, in its dissenting judgment handed down by Conradie J, made a

significant remark as to the importance of obeying court orders when it stated that court orders

are not afforded the respect which they ought to receive. This is evident in their blatant non-

compliance to interdicts. The court is called upon to ensure that it penalises those who do not

comply with such orders.214 This view was further endorsed in North West Star (Pty) Ltd (under

judicial management) v Serobatse & another,215 where the learned Judge Davis JA held that a

society that disregards an order of court would soon be overcome by lawlessness and anarchy.216

The judiciary has illustrated that where there is a willful failure to comply with an order of court

there will be no leniency afforded to such wrongdoers.217

The court’s lack of leniency towards individuals who are non-compliant with court orders was

portrayed in Security Systems Employers’ Organization & others v SA Transport & Allied

Workers Union & others.218 In Security Systems supra an urgent interdict was obtained following

a protected strike in the security services sector that involved appalling acts of violence,

including murder, countless injuries, vandalism, and damage to the employer’s property as well

as private property.219 In terms of the interdict, the members of the union were interdicted from

any violence, intimidation, harassment and assault of non-striking and replacement workers and

212 A Myburgh ‘The failure to obey interdicts prohibiting strikes and violence: The implications for labour law and the rule of law’ (2013) 23(1) Contemporary Labour Law 3. 213 Modise & others v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC). 214 Modise & others v Steve’s Spar Blackheath supra note 213 at 558[120]. 215 North West Star (Pty) Ltd (under Judicial management) v Serobatse & another (2005) 26 ILJ 56 (LAC). 216 North West Star (Pty) Ltd (under Judicial management) v Serobatse & another supra note 215 at 65[17]. 217 Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA). 218 Security Services Employers’ Organization & others v SA Transport & Allied Workers Union & others (2007) 28 ILJ 1134 (LC). 219 Security Services Employers’ Organization & others supra note 218 at 1144[75].

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the union was instructed to affix copies of the interdict on all doors of the employers’ premises

throughout the country in all languages. This was a clear and precise instruction which gave the

union no room to misunderstand what was expected of it.220 The courts have been unrelenting

towards applying a strict approach to what the interdict specifically requires the party to do or

not to do.221

The honorable Mokgouthlheng AJ considered that in terms of the rule nisi pertaining to the

union members, it was pointless confirming the rule on the return date as the strike had ended,

therefore, the purpose of the interdict which was to bring an end to the violence and other

criminal acts had fallen away.222 However, in terms of the rule nisi pertaining to the union and its

officials, the court analysed whether there was a mala fide and wilful intention not to adhere to

the interdict. The argument presented by the respondents was merely to state that they were not

in a position to put an end to the violence or to prevent the compliance of the order.223 The facts

of the case revealed that the union had not affixed the order or the terms in numerous cities, nor

had it communicated the order or the terms via radio when given the opportunity, furthermore

the union did not communicate the order on the website of the company. There had been no steps

taken by the respondents to comply with the rule nisi.224 Mokgouthlheng AJ took into account

the evidence discussed above as well as the respondents’ argument in reaching the decision that

the respondents had not proved that their failure to comply with the order was not wilful and

mala fide. The court on this basis confirmed that they were in contempt of court.225 The first

respondent was fined R500 000 with a five year suspension on condition that it is not found

guilty of contempt on any further order made by the LC.226

220 Security Services Employers’ Organization & others supra note 218 at 1138[22]. 221 Security Services Employers’ Organisation & others v SATAWU & others (2007) 28 ILJ 1134 (LC), Supreme Spring-A Division of Met Industrial v MEWUSA (J2067/2010). 222 Security Services Employers’ Organization & others supra note 218 at 1143[65]. 223 Security Services Employers’ Organization & others supra note 218 at 1137[9]. 224 Security Services Employers’ Organization & others supra note 218 at 1140[34]-[38]. 225 Security Services Employers’ Organization & others supra note 218 at 1145[83]-[85]. 226 Security Services Employers’ Organization & others supra note 218 at 1146[87].

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The case of Security Services supra has highlighted the significant requirements to prove a

contempt of court allegation, which is that those who disregard court orders will be severely

penalised as a means of exerting the authority of the court.227 Even though there have been

instances where employees and unions have been held accountable for contempt of court orders

especially during unprotected strikes,228 these cases are too few to adequately portray the court’s

uncompromising attitude towards such offenders.229 This is partly due to the requirement that the

conduct which the applicant seeks to interdict has to be indicated precisely as is required in civil

proceedings.230 In Security Services supra it was clearly stated in the interdict that the union was

ordered to put up copies of the order to make the employees aware that such an order had been

granted. Thus, having failed to comply with this clear order the court found the union to be

contempt.231

However, the problem arises when there is no clear instruction given to the interdicted party and

the LAC is unwilling to broadly interpret terms as was the case in Food & Allied Workers Union

v In2Food.232 This case was an appeal from the judgment of the LC.233 The initial proceeding

was based on an interim order that had been granted against an unprotected strike that involved

acts of violence, intimidation, assault and harassment. This was completely disregarded by the

union and its members who continued to strike. The employer then applied and obtained another

interim order to provide reason as to why they should not be held in contempt, thereby effecting

the imprisonment of the employees and a claim of R500 000 against the union. On the return day

the employer abandoned its proceedings against the employees.234

The rule nisi was confirmed on the basis that the respondents’ answering affidavit merely

provided denials to the allegations without any substantiation. The court took into account that

227 SA Transport & Allied Workers Union & others v Ikhwezi Bus Service (Pty) Ltd (2009) 30 ILJ 205 (LC). 228 SA Police Service v Police & Prisons Civil Rights Union & others (2007) 28 ILJ 2611 (LC). 229 Rycroft (note 207; 6). 230 Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others (1999) 20 ILJ 392 (LC). 231 Security Services Employers’ Organization & others supra note 217 at 1145[83]-[85]. 232 Food & Allied Workers Union v In2Food (2014) 35 ILJ 2767 (LAC). 233 In2Food (Pty) Ltd v Food & Allied Workers Union & others (2013) 34 ILJ 2589 (LC). 234 In2Food (Pty) Ltd v Food supra note 233 at 2590A-B.

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the interdict had been properly served on the respondents and declined to go any further into the

evidence other than to say that on all the evidence before it there was sufficient evidence that the

union was in contempt of the order.235 The court confirmed the rule and the union was held to be

liable for the payment of R500 000. In its judgment the court highlighted a significant reason for

its decision for imposing the penalty upon the union when it stated that:

“[t]he time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members. This in a context where the Labour Relations Act 66 of 1995, which has now been in existence for some 17 years and of which trade unions, their office-bearers and their members are well aware, makes it extremely easy to go on a protected strike..”.236

The court’s decision was based on the fact that there was no excuse for the extent of violence

that the employees engaged in during the unprotected strike especially since the LRA has been

enacted to provide a simple procedure that would render a strike protected. Furthermore, the

court stated that these uncalled acts of violence diminish the effectiveness of orderly collective

bargaining.237 It must be noted that strike action is a component of collective bargaining without

which the structures of collective bargaining would have no foundation.238 When strikes are

marred by acts of violence, intimidation, harassment, death threats and assassination attempts

against managers, the effectiveness of collective bargaining is also tainted and undermined.239 In

this way it is no longer the negotiation process with the threat of the strike that exerts pressure on

the employer to give into the demands of the employees, but rather it is the end to the violence

that coerces the employer.240 The union was aware that the actions of its members were

unlawful, however, it did not take any measures to prevent or discourage the furtherance of the

strike and attributed all cause for the strike as being solely due to the employer’s refusal to

bargain and further absolved itself and its employees from all liability. Thus, on this basis the

rule had to be confirmed.241

235 In2Food (Pty) Ltd v Food supra note 233 at 2591B-G. 236 In2Food (Pty) Ltd v Food supra note 233 at 2591H-I. 237 In2Food (Pty) Ltd v Food supra note 233 at 2591H-I. 238 D Du Toit ‘What is the future of collective bargaining’ (2007) 28 ILJ 1405 at 1405. 239 M Brassey ‘Fixing the laws that govern the labour market’ (2012) 33 ILJ 1 at 16. 240 Myburgh (note 169; 5). 241 In2Food (Pty) Ltd v Food supra note 233 at 2592A-B.

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However, this was not the end of the matter as FAWU took the matter on appeal. The union

contended on a single argument that there was no evidence to prove that they were in contempt

of the order. The court considered that the interdict specifically stated that the union must cease

to ‘continue’ the strike.242 In light of the first argument that was presented by the respondent that

the union is liable for the actions of its members, the court stated that in an interdict there is a

difference between a juristic person being liable for its members and a juristic person being

liable as a separate legal entity. A contempt of court investigation is merely to determine whether

the union specifically did what the interdict stated it should not do.243 The second argument made

by the respondents asserted that it was implied that the union had to take steps to prevent the

continuation of the strike. In terms of this argument the court stated that there could not be a

generous interpretation to the word ‘continue’ that would infer that the union had to take steps to

positively end the strike. The reason for this was that contempt of court proceedings could not be

taken lightly due to the quasi-criminal implications. On this basis the court further elaborated

that there was no evidence to show that the union had continued with the strike or blocked

entrances after the date that the second interdict had been served. All that was required in terms

of the interdict was for it, as a juristic person, to discontinue with the strike.244 The court thus

concluded that the interdict was too vague and did not specifically state that the union had to take

steps to end the strike by its members and on that basis the appeal was upheld.245

This decision is to be criticized s in Tsogo sun supra the court clearly stated that the severest of

punishment should be given where the union “fails or refuses to take all steps that are responsible

to prevent its occurrence”.246 Even though the interdict did not specifically state that the union

had to take steps to end the strike, Sutherland AJA should have given more consideration to the

respondents’ arguments in light of the pivotal case of Food & Allied Workers Union v Ngcobo

NO & another.247 In Ngcobo supra, FAWU had failed to refer the dispute within the 90 day

period. The union, after being approached by the employees regarding the matter, referred the

242 In2Food (Pty) Ltd v Food supra note 233 at 2592C. 243 Food & Allied Workers Union v In2Food supra note 232 at 2771D-F. 244 Food & Allied Workers Union v In2Food supra note 232 at 2771A-B. 245 Food & Allied Workers Union v In2Food supra note 232 at 2771G-J. 246 Tsogo Sun Casinos (Pty) Ltd t/a Montecasino supra note 174 at 1004[14]. 247 Food & Allied Workers Union v Ngcobo NO & another (2013) 34 ILJ 3061 (CC).

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matter to another official who assured the employees that he would apply for condonation.248

This was never pursued by the official, but instead he attempted to take the matter back to the

CCMA to start the proceedings afresh. This was justifiably refused. The official then sought

legal advice from its attorney who advised that the employees were unfairly dismissed and any

award as to costs would be made adversely. On this basis, the union withdrew its representation

of the employees and informed them that it would not proceed with their claims in the LC. The

CC decided that a union can be held liable for failing to refer a matter on behalf of its members

and if the union does commit such a failure then the members are entitled to compensation.249

Cameron J considered the facts in light of the two arguments made by FAWU. The first being

that there was an implied term that the union was entitled to withdraw its representation when it

no longer served its interest to represent the members and secondly that the failure to refer the

dispute was not in breach of the agreement with its employees.250 The first argument will be

considered as it provides a good illustration on how unions become liable when they represent

their members. Cameron J considered the premise of the union that s 23 of the Constitution

allowed a union 'to determine its own administration, programs and activities', thus absolving it

from liability. However, the court reasoned that this provision is merely to ensure that unions are

afforded independence in the furtherance of the interests of its members. However, this provision

does not state how the union should engage in such furtherance nor does it state that a union is

provided immunity from damages claims.251

The union also averred that s 200 of the LRA and s 23(4)(a) and the union’s constitutional clause

5.11 which states that the aims and objectives allows it to provide legal assistance to officials and

members where it is in the interests of the union, allowed the union to withdraw its assistance at

any time when it was not in the union’s interest to do so.252 It must be noted that s 200 of the

LRA allows a union to act in three capacities, firstly in its own interest, secondly on behalf of its

members and thirdly, in the interests of its members.253 In light of In2Food supra, FAWU and its

248 Food & Allied Workers Union v Ngcobo supra note 247 at 3065[4]-[7]. 249 Food & Allied Workers Union v Ngcobo supra note 247 at 3065[4]-[7]. 250 Food & Allied Workers Union v Ngcobo supra note 247 at 3069[25]. 251 Food & Allied Workers Union v Ngcobo supra note 247 at 3069[25]. 252 Food & Allied Workers Union v Ngcobo supra note 247 at 3067[18]. 253 The LRA; s 200(1)(a)-(c).

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members had been acting collectively in the unprotected strike, which is evident from the union

organiser’s statement that it represents and acts on behalf of its members.254 Furthermore, by

stating that the unprotected strike was a result of the employer’s actions and by extricating all

liability of itself and its members, this conveys that firstly, FAWU was acting on behalf of its

members and thirdly that it was aware of the misconduct and unlawfulness of its members’

actions and condoned it.255 This harmful attitude was highlighted in Garvas supra where the

court stated that “unlawful behavior … threatens the fabric of civilized society and …

undermines the rule of law”.256 In regard to the defense of FAWU in Ngcobo supra, Cameron J

stated that the union had placed unwarranted weight on this provision as it is only promulated to

provide unions legal standing to represent its members, it does not however provide immunity.

Furthermore, clause 5.11 is merely to indicate the objectives of the union, it does not regulate the

functions of the Union.257

The learned judge noted that the union’s constitution contradicted its own case and conferred

liability rather than immunity. In clause 32 it states that shop stewards, officials, committee

members and office-bearers are indemnified of costs, incurred as a result of negligence provided

their actions do not constitute misconduct.258 It must be noted that in In2Food supra, there was

gross misconduct which included the participation of the union. The purpose of this clause is to

ensure that those belonging to the union are held accountable when they engage in acts of

misconduct.259 It must be emphasised that the LRA in s 200(1)(b) infers that unions represent the

attitude and actions of their members. Therefore, the actions of unions and members are one and

the same. It is common knowledge that juristic bodies cannot think or act, thus it is only by the

actions of their members that they are rendered liable.260 However, the court in In2Food supra

clearly stated that an interdict is to be taken seriously and must be clear and must make a

254 Food & Allied Workers Union v In2Food supra note 232 at 2592A-B. 255 Food & Allied Workers Union v In2Food supra note 232 at 2592B. 256 SA Transport & Allied Workers Union supra note 186 at 50. 257 Food & Allied Workers Union v In2Food supra note 233 at 3071[32]. 258 Food & Allied Workers Union v Ngcobo supra note 247 at 3072[33]. 259 Food & Allied Workers Union v Ngcobo supra note 247 at 3072[33]. 260 L Jordaan ‘New perspectives on the criminal liability of corporate bodies: general principles of criminal liability and specific offenses’ 2003 Acta Juridica: Criminal Justice in a New Society: Essays in Honour of Solly Leeman 50.

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distinction between juristic persons acting in their own capacity and juristic persons acting on

behalf of their members.261

However, even though that may be the case, the role and function of the LC must be analysed in

the light of violent strike activity that has plagued our country.262 It must be noted that the

employees who had engaged in the violent misconduct were disciplined and consequently

dismissed. It can be noted that justice had been served in this regard.263 However, the

disallowance of a generous interpretation into the word ‘continue’ ultimately led Sutherland AJA

to allow the union to escape any penalties for its involvement in the unprotected strike. The

scales of justice in this case have clearly tilted towards the union, as the loss of R16 million has

to be solely borne by the employer.264 The purpose of an interdict is to prevent irreparable harm

to the victim; it is therefore ironic that the LAC has enforced harm to the employer through its

judgement in In2Food supra.265 It is submitted that in light of the gross forms of misconduct that

were permitted to take place under the powers of the union and the fact that the union condoned

such atrocious conduct, the court in In2Foods supra should have been more compassionate

towards the moral implications of not exacting punishment against the union as was illustrated in

S v Mamabolo (E TV & others intervening).266 The CC as per the judgment handed down by

Kreigler J in Mamabolo supra, held that the judiciary is required to depend on moral authority,

without which it would be impossible to enforce its power as watchdog over the Bill of Rights.267

The judiciary can only function properly if it obtains the trust and dependency of society by

successfully protecting the ethical and moral values of citizens. Protecting ethical values would

be protecting society from horrific acts of violence by unprotected strikers.268 Thus in response

to the strict enforcement of the rule of law by Sutherland AJA in In2Foods supra, the CC in

261 Food & Allied Workers Union v In2Food supra note 232 at 2771G-H. 262 Rycroft (note 165; 2505). 263 Food & Allied Workers Union v In2Food supra note 232 at 2591F-G. 264 Food & Allied Workers Union v In2Food supra note 232 at 2774[20]. 265 A Rycroft ‘What can be done about strike-related violence?’ Labour Law Research Inaugural Conference, Barcelona 13-15 June 2013 7. 266 S v Mamabolo (E TV & others intervening) 2001 (3) SA 409 (CC). 267 S v Mamabolo (E TV & others intervening) supra note 266 at 16. 268 S v Mamabolo (E TV & others intervening) supra note 266 at 18-19.

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Mamabolo supra held that “where the Judiciary cannot function properly the rule of law must

die”.269

The judgment handed down in In2Food supra clearly indicates that there is a missing link

between what the legal principles required for contempt of court and the moral obligations of the

court.270 Furthermore, In2Food supra has highlighted an important point which is that the LC

and LAC require a distinction between a trade union and the trade union’s members’ when

drafting an interdict because the LAC requires that contempt be proven against the union in its

own right. Thus it can be deduced that in terms of an interdict a trade union and its members are

regarded to be two separate bodies.271 This is highly concerning as s 68 of the LRA does not

infer that there has to be a separation made between a trade union and its members when drafting

an interdict.272 The case of In2Food supra illustrates that a contempt of court penalty can never

substitute for a reactive stance from legislature nor will it be a shield against society’s growing

discontent of violent and criminal behavior during strikes.273 The effectiveness of the LC and the

LAC came under scrutiny during a SASLAW address by Van Niekerk J who reasoned that the

viewpoint and role of the court is undermined when strikers advance their interests by exceeding

the barriers of the law. One of the ways in which the courts could reaffirm their authority is by

providing a narrow interpretation of the provisions of the LRA.274

The analysis of cases which illustrate misconduct during strikes and the lack of adherence

towards interdicts shows that violence, intimidation, harassment and destruction to property has

become inculcated in strike action to the extent that it has “been established as a tradition”.275 A

possible contributor to such violence could be the liberal interpretation of the procedural

269 S v Mamabolo (E TV & others intervening) supra note 266 at 18-19. 270 Food & Allied Workers Union v In2Food supra note 232 at 2774[19]. 271 M Ling ‘Draft the terms you mean’ 2014 Without Prejudice 38. 272 The LRA; s 68. 273 Rycroft (note 166; 6). 274 Myburgh (note 168; 71). 275 P Benjamin ‘Assessing South Africa’s Commission for Conciliation, Mediation and Arbitration (CCMA)’ Working Paper No. 47 (2013) 35.

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requirements of the right to strike.276 An excessive interpretation of legislation can be detrimental

as it often causes the scales of power to tilt either in the favour of employers or employees,

which impedes the purpose of orderly dispute resolution.277 The liberal interpretation of s 65(2)

of the LRA by the CC can cause an acrimonious and volatile atmosphere as a result of the

principle enunciated in SA Transport & Allied Workers Union & others v Moloto No &

another.278 If employers are unaware of the extent of the strike, they cannot prepare for it.

Consequently, when there is uncertainty it leads to an unstable arena that forms the breeding

ground for violence. A strike that is constructed upon instability is bound to become violent and

chaotic.279 The interpretation of the LRA should not focus solely on the implications of the right

to strike on employees, but rather it should extend its scope towards an external effect an

interpretation would have on society as a whole,280 as strikes extend outside of the employment

relationship and their consequences are experienced by all citizens especially those who are

victims of violent strike action.281

It must be considered that when strikers engage in violence and intimidation this ultimately

negates individuals’ freedom to decide whether they would want to participate in the strike. This

violence and harassment adversely affects the lives of non-strikers and endangers their health

and safety.282 It has been proposed by government that the introduction of compulsory ballots

prior to a protected strike would largely decrease violence and intimidation against non-striking

employees.283 The lack of mandatory secret ballots can be viewed as a contributor towards the

instability of initiating strikes.284 An additional proposal was made by government for extending

the 30 day “cooling off” period enshrined in s 65(1) to 60 days and an extension to 30 days for

276 The LRA; s 65 (2). 277 J Romeyn ‘Striking a balance: the need for further reform of the law relating to industrial action’, available at http://www.aph.gov.au/library, accessed on 15 June 2015. 278 SA Transport & Allied Workers Union & others v Moloto No & another (2012) 33 ILJ 2549 (CC). 279 M A Chicktay ‘Employment, the economy & growth: The implications for labour law’ paper presented at Sandton Convention Centre 30 July-1 August 2013 17. 280 C Thompson ‘Essential services and the unfair labour practice remedy’ (1992) 13 ILJ 500 at 500. 281 S Mottier & P Bond ‘Social protest in South Africa’, available at http://ccs.ukzn.ac.za/default.asp?2.27.3.1858, accessed on 15 June 2015. 282 D Horsten & C le Grange ‘The limitation of the educator’s right to strike by the child’s right to basic education’ (2012) 27(1) SAPL 514. 283 M Malefane ‘Proposals ‘an attack on unions’’ Sowetan 8 December 2011 at 4. 284 P Leon ‘A world-class regulatory regime is within our grasp’ Business Day 31 October 2014 at 11.

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establishing picketing rules.285 Even though these proposals have been vehemently rejected by

unions, it draws cognisance to the necessary balance that needs to be struck between the right to

strike and the rights of everyday citizens, the protection of private, municipal and state property,

street traders, non-striking employees and health, safety and environmental considerations.286

There has also been a recommendation to implement compulsory arbitration in the public sector

that would effectively ensure that public sector employees were treated the same as employees

within essential services.287 However, this recommendation must be considered in the light of the

democratic values of society as well as the fact that compulsory arbitration is currently not as

successful as the legislature would have hoped it would be as employees within essential services

still embark on strikes. Furthermore, it would add to the growing frustration of the dissatisfied

public sector employees.288 It is submitted that there needs to be more attention given to strikes

especially with regard to the misconduct that is anticipated with industrial action.289 This urgent

need had been responded to by the National Economic, Development and Labour Council

committee (Nedlac) who agreed on a code of good practice specifically centered on collective

bargaining and industrial action. The code is intended to address the entire phase of dispute

resolution which would include regulations on pre-negotiation, the negotiation process, post-

negotiation proceedings, dispute, and the implementation of industrial action and lockouts as

well as the post-strike and lockout phase.290

6.5. CONCLUSION

285 ibid 11. 286 W Khuzwayo ‘Cosatu sees red over proposed changes to LRA’ STAR 7 November 2011 at 15. 287 W R Maclaurin ‘Recent experience with compulsory arbitration in Australia’ (1938) 28(1) The American Economic Review 67. 288 D S Grant & M Wallace ‘Why dos trikes turn violent?’ (1991) 96(5) American Journal of Sociology 1125. 289 Rycroft (note 1; 827). 290 Code of good practice on collective bargaining and industrial action’ HR Pulse News Desk 18 August 2015 at [1], available at http://www.hrpulse.co.za/news/latest-news/232754-code-of-good-practice-on-collective -bargaining -and- industrial-action, accessed on 21 November 2015.

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The LRA has effectively enshrined provisions that deter and prevent unruly behaviour during

strikes such as dismissal, interdicts, the awarding of compensation to victims of strike

violence.291 However, the situation becomes tricky when unions are not involved in calling

strikes and employees embark on rampant strikes to secure their demands.292 It must be noted

that in instances of wildcat strikes, union involvement is excluded and includes an undeniable

characteristic of violence embedded in asserting demands as was evident in the Marikana

strike.293 It must be further highlighted that incidents such as the Marikana strike are by no

means unique as it has become the norm for poverty stricken individuals as they fight for

survival.294 The essence of strikes and protest action exceeds the ordinary boundaries of the

employment relationship and focuses on far greater social and political deficiencies of the

country.295 There is a culture of violence that has become integrated in the battle for housing,

water, electricity and a decent wage which has now evolved into a class struggle.296 These events

have created an avalanche of terror as protestors and strikers burn tyres and vehicles, loot shops,

destroy buildings, block roads and violently confront police.297 These unprecedented torrents of

strike violence reveal an inherent flaw within the social dynamics of society which have been

inherited from colonial times.298 It is far beyond the scope and capabilities of a single piece of

legislation, namely, the LRA to address the plight of society’s underdogs and their growing

frustration about a living wage,299 nor can it be expected that the LRA should provide a cure for

291 The LRA; s 68, 292 S J Cole ‘Discriminatory discipline of union representatives for breach of their “Higher Duty” in illegal strikes’ (1982) 5 Duke Law Journal 901. 293 C Chinguno ‘Marikana: fragmentation, precariousness, strike violence and solidarity’ (2013) 40(138) Review of African Political Economy 639. 294 M Ndlovu ‘Living the Marikana world: The state, capital and society’ (2013) 18(1) International Journal of African Renaissance Studies 47. 295 I Bekker & L van der Walt ‘The 2010 mass strike in the state sector, South Africa: Positive achievements but serious problems’ (2010) 4 Sozial.Geschichte Online available at http://www.stiftung-sozialgeschichte.de, accessed on15 July 2015. 296 P Bond & S Mottiar ‘Movements, protests and a massacre in South Africa’ (2013) 31(2) Journal of Contemporary African Studies 288. 297 P Alexander ‘Rebellion of the poor: South Africa’s service delivery protests-a preliminary analysis’ (2010) 37(123) Review of African Political Economy 26. 298 M Seedat … et al ‘Psychological research and South Africa’s violence prevention responses’ (2014) 14(2) South African Journal of Psychology 136. 299 L Rafapa ‘Rethinking Marikana: Warm and cold lenses in plea for humanity’ (2014) 30(2) Journal of Literary Studies 126.

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the ineffective structures within our socio-economic structures.300 This requires aggressive

intervention from our political leaders who possess greater power to address this inadequacy.301

300 H Wasserman ‘The language of listening: the Marikana aftermath’ (2013) 33 Rhodes Journalism Review 111. 301 T Ngcukaitobi ‘Strike law, structural violence and inequality in the platinum hills of Marikana’ (2013) 34 ILJ 836 at 858.

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CHAPTER SEVEN

CONCLUSION

7.1. CONCLUSION

The right to strike has become recognized as a fundamental right within the national and

international community. This right has earned its pertinence for the pivotal role it has played in

shaping labour laws and seeking to instill equality within the workplace as well as society as a

whole.1The significance of strike action is evident in South Africa as the former part of the 20th

century experienced a rise in strike action as a response to the inequalities relating to job

opportunities and wages between black and white workers.2However, it was these inequalities

that provided black workers with the impetus to revolt against discriminatory laws within the

industrial and political sphere.3Strike action thus contributed to the development of labour

legislation that sought to bring impartiality within the labour industry through the promulgation

of labour legislation.4

TheLabour Relations Act of 1995 (hereinafter referred to as the LRA) has been government’s

reactive response to the deficiencies within the industrial and social field but it has also been the

first legislation to endorse the right to strike across all races without any repercussions provided

thatthestrike has followed the procedure stipulated by the LRA.5The main aim of the LRA has

been to rewrite the injustices of the past.6 In light of the recent violent strikes, the effectiveness

1 LJ Matee ‘Limitation on Freedom of Association: The case of Public Officers in Lesotho’ (unpublished LLM thesis, University of Kwazulu-Natal, 2013) 9. 2S van der Velden& W Visser ‘Strikes in the Netherlands and South Africa, 1900-1998: a comparison’ (2006) 30(1) SAJLR 52. 3M Beittal ‘Labor Unrest in South Africa 1870-1970’ (1995) 18(1) Review (Fernand Braudel Center) 90. 4H Suchard ‘Labour relations in South Africa: retrospective and prospective’ (1982) 12(2) Africa Insight96. 5R Welch ‘Rights to strike in UK and SA law: a comparison’ (2000) 26 International Union Rights, available athttp://www.jstor.org/stable/41935840, accessed on 13 March 2015. 6 P Benjamin ‘Labour market regulation: International and South African Perspectives’ HSRC Employment and Economic Research Program (2005) 41.

210

of controlling the unruly conduct of strikers has come under spotlight.7 It is quite evident from

the chapters discussed within this dissertation that the LRA has promulgated procedures for

ensuring the protection of strikes. The LRA has also entrenched a number of methods for

controlling and preventing illegal strike action as discussed in chapter six. Furthermore, the

Judiciaryhas clamped down on strikers and unions who engage in misconduct during strikes.

However, these violent strikes are indicative of the fact that South Africans have inherited a

pervasive culture of strife from the apartheid era which is still used today to satisfy their

demands.8 Many of the social and economic frustrations that South Africans have experienced

have seeped into the workplace.9 The similarities of these strikes to those during apartheid range

beyond mere violence, but rather include the weakened relationship between government and

workers which ultimately leads to such violent conduct.10

There are many contributors to the violence and unwarranted illegal conduct of strikers such as

inequality, poverty, union rivalry, unemployment to name a few,11 however, this dissertation has

merely considered the legal perspective on possible pitfalls and the likely recommendations that

could decrease strike violence. These, however, must be analyzed in light of the democratic

values of our country, as no amount of laws will eliminate the violence entrenched in strikes,

although it may be probable that government could positively contribute to reducing the

unlawful conduct of strikers if it intervened to shape strike activity.12 A further consideration

which must be acknowledged is that even though the Legislature may propose amendments to

improve themanagement and supervision of strike activity, it ultimately depends on how these

laws are implemented through the court system that would bring about success.13

7 ‘A critical analysis of the 2010 Public Service strike in South Africa: A service delivery approach’, available at http://www.sabinet.co.za/webx/access/electronic/.../ipad-v47-ni-si1-a7.pdf, accessed on 13 April 2015. 8 R S Melkote “Blacks against blacks’ violence in South Africa’ (1993) 28(23) Economic and Political Weekly 1150. 9 H Adam ‘Options for transforming South Africa’ (1987) 40(2) Journal of International Affairs 298. 10 R Grawitzky ‘Security strike lessons must be learnt’ STAR 12 October 2006 at 2. 11 G Murwirapechena & K Sibanda ‘Exploring the incidents of strikes in post-apartheid South Africa’ (2014) 13(3) International Business & Economics Research Journal 554. 12 C Huxley ‘The state, collective bargaining and the shape of strikes in Canada’ (1979) 4(3) The Canadian Journal of Sociology 230. 13 K Henrard ‘Post-apartheid South Africa’s democratic transformation process: Redress of the past, reconciliation and ‘unity in diversity’’ (2002) 1(3) The Global Review of Ethnopolitics 36.

211

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A

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2. Administrator of Transvaal & another v Theletsane & others 1991 (2) SA 192 (A).

3. Afrox Ltd v SA Chemical Workers Union & others (2) (1997) 18 ILJ 406 (LC).

4. Algoa Bus Company v SATAWU & others [2010] 2 BLLR 149 (LC).

5. Allied Workers Union & others v Umgeni Iron Works (1990) 11 ILJ 589 (IC).

6. Amalgamated Engineering v Minister of Labour 1949 (4) SA 908 (A).

7. AMAWU v Concor Construction West (1988) 9 ILJ 839 (IC).

8. Arenstein v Secretary for Justice 1970 (4) SA 273 (T).

9. Avril Elizabeth Home for the Mentally Handicapped v CCMA & others (2006) 27 ILJ

1644 (LC).

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B

1. Baderbop (Pty) Ltd v NUMSA & others [2002] 2 BLLR 139 (LAC).

2. BAWU& Others v Edward Hotel (1989) 10 ILJ 357 (IC).

3. Benefit Cycle Works v Atmore 1927 TPD 524.

4. Benoni Produce & Coal Co Ltd v Gundelfinger 1918 TPD 453.

259

5. BHT Water Treatment (a division of Afchem) (Pty) Ltd incorporating PWTSA v CCMA &

others [2002] 2 BLLR 173 (LC).

6. Billiton Aluminium SA Ltd v National Union of Metalworkers of SA (2001) 22 ILJ 2434

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7. Black Allied Workers Union (SA) v Pek Manufacturing Co (Pty) Ltd (1990) 11 ILJ 1095

(IC).

8. Black Allied Workers Union & Others v Umgeni Iron Works (1990) 11 ILJ 589 (IC).

9. Bleazard & others v Argus Printing & Publishing Co Ltd & others (1983) 4 ILJ 60 (IC).

10. Blow Molders v NUMSA and others (case NHN 12/3/316 unreported).

11. BMW v Van der Walt (2000) 21 ILJ 113 (LAC).

12. Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC)

13. Bravo Group Sleep Products (Pty) Ltd v Chemical Energy Paper Printing Wood & Allied

Workers Union(2009) 30 ILJ 1090 (LC).

14. BTR Dunlop Ltd v National Union of Metalworkers of South Africa (1989) 10 ILJ 701

(IC).

12. Business SA v COSATU & another [1997] 5 BLLR 511 (LAC).

C

1. Ceramic Industries Ltd t/a Betta Sanitary ware & another v NCBAWU & others [1997] 6

BLLR 687 (LAC).

2. CEPPWAWU v Metrofile (Pty) Ltd (2004) 25ILJ 231 (LAC).

3. Chamber of Mines of SA v Association of Mineworkers & Construction Union (2014) 35

ILJ 1243 (LC).

4. Chairperson of the Constitutional Assembly, ex parte: In re Certification of the

Constitution of the Republic of SA 1996 (4) SA 744 (CC).

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another (2013) 34 ILJ 1966 (LC).

7. Chemical Energy Paper Printing Wood & Allied Workers Union & others v Metrofile

(Pty) Ltd (2004) 25 ILJ 231 (LAC).

260

8. Chemical Workers Industrial Union (CWIU) v Plascon Decorative (Inland) (Pty) Ltd

(1999) 20 ILJ 321 (LAC).

9. City of Johannesburg Metropolitan Municipality v SA Municipality Workers Union &

others (2008) 29 ILJ 650 (LC).

10. City of Matlosana v SA Local Government Bargaining Council (2009) 30 ILJ 1293.

11. Coin Security Group (Pty) Ltd v Adams [2000] 4 BLLR 371 (LAC).

12. Coin Security Group v SA National union for Security Forces 1998 (1) SA 685 (C).

13. Columbus Joint Venture t/a Columbus Stainless Steel v NUMSA [1997] 10 BLLR 1292

(LC).

14. Consolidated Frame Cotton Corporation v President, Industrial Court 1985 (3) SA 150

(N)

15. Council of Mining v Chamber of Mines of South Africa (1984) 6 ILJ 293.

16. Country Fair Foods (A Division of Astral Operations Ltd) v Hotel Liquor Catering

Commercial & Allied Workers Union & others (2006) 27 ILJ 348 (LC).

17. Country Fair Foods (Pty) Ltd v FAWU & others [2001] 5 BLLR 494 (LAC).

18. Curtis v Minister of Safety & Security & others 1996 (3) SA 617 B (CC).

19. Crocodile Valley Citrus Co v SA Agricultural Plantation & Allied workers (case no

ESC102, unreported).

20. CWIU v Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC).

D

1. De Beers Consolidated Mines Ltd v CCMA & others [2000] 5 BLLR 578 (LC).

2. De Beer v Walker 1948 (1) SA 340 (T).

3. De Freitas and Another v Society of Advocates of Natal (Natal Law Society

Intervening)[998] 11 BCLR 1345 (CC).

4. Dlali v Railit (1989) 19 ILJ 353 (IC).

5. Doornfontein Gold Mining Co Ltd v National Union of Mineworkers & others (1994) 15

ILJ 527 (LAC).

6. Durban City Council v Minister of Labour 1948 (1) SA 220 (N).

7. Durban City Council v Minister of Labour & Another1953 (3) SA 708 (D).

261

E

1. Early Bird Farm (Pty) Ltd v Food & Allied Workers Union & others (2004) 25 ILJ 2135

(LAC).

2. East Asiatic Co (SA) Ltd v Midlands Manufacturing Co (Pty) Ltd 1954 (2) SA 387 (C).

3. East London (Pty) Ltd v National Union of Metalworkers of SA and others (2007) 28 ILJ

642 (LC).

4. East Rand Gold & Uranium Co Ltd v National Union of Mineworkers (1989) 10 ILJ 683

(LAC).

5. East Rand Plastics (Pty) Ltd v SACWU and others (case NH 12/3/693 unreported).

6. ECCAWUSA & others v Southern Sun Hotels (Pty) Ltd (2000) 21 ILJ 1090 (LC).

7. Edgars Stores Ltd v SA Commercial Catering and Allied Workers Union and others

(1992) 13 ILJ 177 (IC).

8. Enforce Guarding (Pty) Ltd v National Security & Unqualified Workers Union & others

(2001) 22 ILJ 2457 (LC).

9. Enforce Guarding (Pty) Ltd v NASUWU & others [2003] 1 BLLR 9 (LC).

10. Engelbrecht v Road Accident Fund and Another 2007 (6) SA 96 (CC).

11. Equity Aviation Services (Pty) Ltd v SATAWU & others (2009) 30 ILJ 1997 (LAC).

12. Equity Aviation v SATAWU (478/09) (2011) ZASCA 232 (30 November 2011).

13. Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union & others

(2011) 32 ILJ 2894 (SCA).

14. Eskom Holdings Ltd v National Union of Mineworkers & others (Essential Services

Committee Intervening) (2011) 32 ILJ 2904 (SCA).

15. Ex Parte Consolidated Fine Spinners & Weavers Ltd (1987) 8 ILJ 97 (D).

16. Ex Parte Minister of Justice: In re R v Gerstnera 1930 AD 420.

F

1. Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA).

2. Fakude v Kwikot (Pty) Ltd (2013) 34 ILJ 2024 (LC).

3. FAWU and SA Breweries (1990) 11 ILJ 413 (ARB).

262

4. FAWU v Cape Slaughtering, Flaying & Dressing Co Ltd NHK 13/2/2175, unreported.

5. FAWU v National Co-op Dairies (2) (1989) 10 ILJ 490 (IC).

6. FAWU v General Food Industries Ltd [2002] 10 BLLR 950 (LC).

7. FAWU v Rainbow Chicken Farms [2000] BLLR 70 (LC).

8. FAWU v Spekenham Supreme (1988) 9 ILJ 627 (IC).

9. FBWU v Hercules Cold Storage (1989) 10 ILJ 457 (IC).

10. Ferreira v Levin NO & others 2011 (2) SA 473 (CC).

11. FGWU v Minister of Safety & Security(1999) 20ILJ 1258 (LC).

12. FGWU & others v The Minister of Safety and Security & others [1999] 4 BLLR 332 (LC)

13. Fidelity Gaurds Holdings (Pty) Ltd v Professional Transport Workers Union & others (1)

(1998) 20 ILJ 260 (LAC).

14. Floraline v SASTAWU [1997] 9 BLLR 1223 (LC).

15. Food & Allied Workers Union v Clover Dairies (1986) 7 ILJ 697 (IC).

16. Food and Allied Workers Union (FAWU) v TSB Sugar RSA Ltd & others [2013] 10

BLLR 973 (LAC).

17. Food & Allied Workers Union v Ngcobo (2013)34 ILJ 1383 (SCA).

18. Food & Allied Workers Union & others v C G Smith Sugar Ltd, Noodsberg (1989) 10 ILJ

907 (IC).

19. Food & General Workers Union & others v Minister of Safety & Security & others

(1999) 20 ILJ 1258 (LC).

20. Food & Allied Workers Union obo Kapesi & others v Premier Foods Limited t/a Blue

Ribbon Salt River (2010) 31 ILJ 1654 (LC).

21. Food & Allied Workers Union & others v Rainbow Chicken Farms (2000) 21 ILJ 615

(LC).

22. Food and Allied Workers Union obo Rala & others v Coca Cola Bottling & another

(2002) 23 ILJ 196 (CCMA).

23. Food & Allied Workers Union v In2Food (2014) 35 ILJ 2767 (LAC).

24. Foodgro (A division of Leisurenet Ltd) v Keil [1999] 9 BLLR 875 (LAC).

25. Ford Motor Company of SA (Pty) Ltd v NUMSA & others(P32/07 08/11/2007,

unreported)

26. Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).

263

27. Fourways Mall (PTY) Ltd & another v SA Catering & Allied Workers Union & another

(1999) 20 ILJ 1008 (W).

G

1. Gauteng ProvinisaleAdministrasie v Scheepers 2000 21ILJ 1304 (LAC).

2. Government of the Islamic Republic of Iran v Berends 1998 (4) SA 107 (Nm).

3. Government of the Western Cape Province v Congress of SA Trade Unions & another

(1999) 20 ILJ 151 (LC).

4. Government of the Western Cape Province v COSATU & another [1998] 12 BLLR 1286

(LC).

5. Grafton Furniture Mfg (Pty) Ltd v Industrial Council for the Furniture Mfg Industry

1982 3 ILJ 294.

6. Growthpoint Properties Ltd v SA Commercial Catering & Allied Workers Union &

others (2010) 31 ILJ 2539.

H

1. Independent Municipal and Allied Trade Union and others v Rustenburg Transitional

Council (2000) 21ILJ 377 (LC).

2. Harksen v Lane NO and others 1998 (1) SA 300 (CC).

3. Henred Fruehauf Trailers (Pty) Ltd v National Union of Metalworkers of SA & others

(1992) 13 ILJ 593 (LAC).

4. Hextex& other v SA Clothing & Textile Workers Union & others (2002) 23 ILJ 2267

(LC).

5. Hlongwane & others v Rector: St Francis College & others 1989 (3) SA 318 (D).

6. Hlope v Transkei Development Corporation Ltd (1994) 15 ILJ 207 (ICTK).

7. HOSPERSA v Northern Cape Provincial Administration (2000) 21ILJ 1066 (LAC).

I

264

1. Islamic Unity Convention v Independent Broadcasting Authority[2002] 5 BLLR 433

(CC).

2. Independent Municipal and Allied Trade Union and others v Rustenburg Transitional

Council(2000) 21ILJ 377 (LC).

3. Investigating Directorate: Serious Economic Offences & others v Hyundai Motor

Distributors (Pty) Ltd & others: In re Hyundai Motor Distributors (Pty) Ltd & others v

Smit NO & others 2001 (1) SA 545 (CC).

4. In2Food (Pty) Ltd v Food & Allied Workers Union & others (2013) 34 ILJ 2589 (LC).

5. Islamic Unity Convention v Independent Broadcasting Authority[2002] 5 BLLR 433

(CC).

6. Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines v Transport & General Workers

Union & others (2009) 30 ILJ 1099 (LC).

J

1. Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999) 20 ILJ 89

(LAC).

K

1. Kauesa Minister of Home Affairs 1996 (4) SA 965 (Nm).

2. Keen & 24 others v Durban City Council 1950 (1) PH K26.

3. Kem-Lin Fashions CC v Brunton (2001) 22 ILJ 109 (LAC).

4. Keshwar v SANCA (1991) 12 ILJ 816.

5. Khosa and Others v Minister of Social Development and Others[1999] (6) BCLR 615

(CC).

6. Khumalo& others v Holomisa (2003) 24 ILJ 305 (CC).

7. KZN Furniture Manufacturer’s Association v National Union of Furniture & Allied

Workers of South Africa [1996] 8 BLLR 964 (N).

L

1. Lomati Mill Baberton (A Division of Sapp Timber Industries) v Paper Printing Wood &

Allied Workes Union (1997)18ILJ 178 (LC).

2. Langeveldt v Vryburg Transitional Local Council & others [2001] 5 BLLR 501 (LAC).

265

3. Liberty Box & Bag Manufacturing Co (Pty) Ltd v Paper Wood & Allied Workers Union

(1990) 11 ILJ 427 (ARB).

4. Lomati Mill Baberton (A Division of Sapp Timber Industries) v Paper Printing Wood &

Allied Workes Union (1997) 18ILJ 178 (LC).

5. Lomati Mill Barberton (A division of Sappi Timber Industries) v PPWAWU & others

(1997) 4 BLLR 415 (LC).

M

1. Mzeku & others v Volkswagen SA (Pty) Ltd & others (2001) 22 ILJ 1575 (LAC).

2. Mackay v ABSA Group & another [1999] 12 BLLR 1317 (LC).

3. Macsteel (Pty) Ltd v NUMSA(1990) 11 ILJ 995 (LAC).

4. Majavu 1994 (4) SA 268 (CK).

5. Manguang Local Municipality v SA Municipality Workers Union (2003) 24 ILJ 405 (LC).

6. Marble Hall Spar v SACWU& others [1997] 10 BLLR 1311 (LC).

7. Marievale Consolidated Mines Ltd v President of the Industrial Court & others 1986 7

ILJ 152 (T).

8. Markhams (A Divion of Foshini Retail Group (Pty) Ltd) v Matji NO & others [2003] 11

BLLR 1145 (LC).

9. Marutha v Sember CC T/A Review Printers, Pietersburg (1990) 11 ILJ 804 (IC).

10. Masilela& others v Reinhart Transport (Pty) Ltd & others (2010) 31 ILJ 2942 (LC).

11. Mawethu Civils (Pty) Ltd v National Union of Mineworkers (2013) 34 ILJ 2624 (LC).

12. MAWU v Natal Die Castings Co (Pty) LTD(1986) 7 ILJ 520 (IC).

13. Mazubuko and others v City of Johannesburg and others 2010 (4) SA 1 (CC).

14. Mbiyane v Cembad t/a TA Art Centre (1989) 10 ILJ 468 (IC).

15. Mcosini v Mancotywa & another (1998) 19 ILJ 1413 (TK).

16. Media Workers Association of SA & others v The Argus Printing & Publishing Co Ltd

(1984) 5 ILJ 16 (IC).

17. Media Workers Association of SA, The & others v Facts Investors Guide (Pty) Ltd &

another (1986) 7 ILJ 313 (IC).

18. Member of the Executive Council for Development Planning and Local Government,

Gauteng v Democratic Party and others 1998 (4) SA 1157 (CC).

266

19. Metal & Allied Workers Union v Hart Ltd (1985) 6 ILJ 478 (IC).

20. Metal & Electrical Workers Union of SA v National Panasonic Co (1999) 12 ILJ 533 (C).

21. Midland Chamber of Industries Staff Committee v Midland Chamber of Industries [1995]

5 BLLR 74 (IC).

22. Minister for Labour & Minister for Justice (1941) TPD 108.

23. Minister of Safety & Security v Sekhoto 2011 (5) SA 367 (SCA).

24. MITUSA & others v Transnet Ltd & others [2002] 11 BLLR 1023 (LAC).

25. MITUSA v Transnet (Pty) Ltd(2009) 23 ILJ 2213 (LAC).

26. Modise & others v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC).

27. Mondi Paper (a Division of Mondi Ltd) v Paper, Printing Wood and Allied Workers

Union & others (1997) 18 ILJ 84 (D).

28. Mondi Ltd (MondiKraft Division) v Chemical Energy Paper Printing Wood & Allied

Workers Union & others (2005) 26 ILJ 1458 (LC).

29. Moses Nkadimeng & others v Raleigh Cycles (SA) Ltd (1981) 2 ILJ 34 (IC).

30. Msomi v The Claims Officer & another (1980) 1 ILJ 292 (N).

31. Mthimkhulu v Commission for Conciliation, Mediation & Arbitration & another (1999)

20 ILJ 620 (LC).

32. Murray & Roberts Buildings (Cape Town) Pty Ltd v SA Allied Workers Union (1987) 8

ILJ 325.

33. Mutual & Federal Insurance Co Ltd v Banking Insurance Finance & Assurance Workers

Union (1996) 17 ILJ 241 (A).

34. Mvumvu and others v Minister for transport and another 2011 (2) SA 473 (CC).

35. MWASA v Perskor (1989) 10 ILJ 441 (IC).

36. Mynwerkersunie v O’Okiep Copper Co Ltd (1983) 4 ILJ 140 (IC).

37. Mzeku & others v Volkswagen SA (Pty) Ltd & others (2001) 22 ILJ 1575 (LAC).

38. Mzeku v Volkswagen SA (Pty) Ltd [2001] 8 BLLR 857.

N

1. NUMSA v Vetsak Co-Operative Ltd & others (1996) 17 ILJ 455 (A).

267

2. NAPTOSA & others v Minister of Education, Western Cape & others (2001) 22 ILJ 889

(C).

3. Natal Die Casting v President, Industrial Court & others (1987) 8 ILJ 245 (D).

4. National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs

and others 1999 (1) SA 6 (CC).

5. National Education Health & Allied Workers Union obo Cornelius & others and High

Rustenburg Hydro (2004) 25 ILJ 1339 (CCMA).

6. National Employers Forum v Minister of Labour & others (2003) 24 ILJ 954 (LC).

7. National Police Services Union & others v National Negotiating Forum & others (1999)

20 ILJ 1081 (LC).

8. National Union of Metalworkers of SA v Hendor Mining Supplies (2007) 28 ILJ 1278

(LC).

9. National Union of Metalworkers of SA & others v Atlantis Forge (Pty) Ltd (2005) 26 ILJ

1984 (LC).

10. National Union of Metalworkers of SA & others v Bader Bop (Pty) Ltd & another 2003

(3) SA 513 (CC), (2003) 24 ILJ 305 (CC).

11. National Union of Metalworkers of SA & others v Hendor Mining Supplies (a division of

Marschalk Beleggings (Pty) Ltd (2003) 24 ILJ 2171 (LC).

12. National Union of Metalworkers of SA & others v Highveld Steel & Vanadium (2002) 23

ILJ 895 (LAC).

13. National Union of Mineworkers v East Rand Gold & Uranium (1989) 10 ILJ 103 (IC).

14. National Union of Mineworkers & others v Deelkraal Gold Mining Co Ltd (1994) 15 ILJ

1316 (IC).

15. National Union of Mineworkers v Eskom Holdings Soc Ltd (2012) 33 ILJ 669 (LC).

16. National Union of Mineworkers & others v Free State Consolidated Gold Mines

(Operations) Ltd-President Steyn Mine; President Brand Mine; Freddies Mine 1996 (1)

SA 422 (A).

17. Ncgobo v FAWU [2012] 10 BLLR 1035.

18. Ndamana v Marble Lime & Associated Industries (1991) 12 ILJ 148 (IC).

19. NEHAWU v University of Cape Town & others (2003) 24 ILJ 95 (CC).

20. Nene & others v Durban Transport Management Board (1992) 13 ILJ 684 (IC).

268

21. New National Party of SA v Government of the Republic of SA & others 1999 (5) BCLR

489 (CC).

22. NEWU v Mtshali & another [2000] 3 BLLR 337 (LC).

23. NEWU v Mtshali & Another (2000) 21 ILJ 1166.

24. Ngewu, Masondo v Union Cooperative Bark and Sugar Co Ltd 1982 (4) SA 390 (N).

25. Ngobo v Durban Transport Management Board (1991) 12 ILJ 1094 (IC).

26. Nomaqumbe & others v Multi Office (Pty) Ltd (1992) 13 ILJ 152 (IC).

27. North East Cape Forests v SAADAWU & others [1997] 5 BLLR 578 (LC).

28. North East Cape Forests v SAAPAWU & others (2) [1997] 6 BLLR 711 (LAC)

29. North West Star (Pty) Ltd (under Judicial management) v Serobatse & Another (2005) 26

ILJ 56 (LAC).

30. NPSU & others v The National Negotiating Forum & others [1999] 4 BLLR 361 (LC).

31. NUFAWU of SA v New Era Products (Pty) Ltd (1999) 20ILJ 869 (IC).

32. NUM v Black Mountain Mineral Development Company (Pty) Ltd (1994) 15 ILJ 1005

(LAC).

33. NUM v CCMA (2011) 32 ILJ 2104 (LAC).

34. NUM v East Rand Gold and Uranium Co Ltd (1991) 12ILJ 221 (A).

35. NUM v Goldfields Security Ltd (1999) ILJ 1553 (LC).

36. NUM v Libanon Gold Mining Co (1988) 9 ILJ 832 (IC).

37. NUM & Others v Billard Contractors CC & Another [2006] 12 BLLR 1191 (LC).

38. NUMSA v Boart MSA [1996] 1 BLLR 13 (LAC).

39. NUMSA v Elm Street Plastics t/a Adv Plastics (1989) 10 ILJ 328 (IC).

40. NUMSA v G M Vincent Metal Sections (Pty) Ltd (1999) 20 ILJ 2003 (SCA).

41. NUMSA & others v Highveld Steel & Vanadium Corporation Ltd [2002] 1 BLLR 13

(LAC).

42. NUMSA & others v Nalva (Pty) Ltd (1992) 13 ILJ 1207 (IC).

43. NUMSA v Three Gees Galvanising (1993) 14 ILJ 372 (LAC).

44. NUMSA v Vetsak Co-Operative Ltd & others (1996) 17 ILJ 455 (A).

45. NUTW v Stag Packings (Pty) Ltd (1982) 3 ILJ 285 (IC).

46. Nyamakazi v President of Bophuthaswana 1992 (4) SA 540 (BG).

269

P

1. Prinsloo v Van der Linde and another 1997 (6) BCLR 759 (CC).

2. Paper Wood & Allied Workers Union v Uniply (Pty) Ltd (1985) 6 ILJ 255 (IC).

3. P.E. Bosman Transport Works Committee & Others 1980 (4) SA 801 (T).

4. Peter v Peter & others 1959 (2) SA 347 (A).

5. Performing Arts Council of the Transvaal v Paper Printing Wood & Allied Workers

Union & others (1995) 16 ILJ 233 (IC).

6. Performing Arts Council (Transvaal) v Paper Printing Wood & Allied Workers Union &

others (1992) 13 ILJ 1439 (LAC).

7. Picardi Hotels Ltd v FGWU & others [1999] 6 BLLR 601 (LC).

8. Pick n Pay (Pty) Ltd v SA Commercial Catering & Allied Workers Union & others 1998

19 ILJ 1546 (LC).

9. Pikitup (SOC) Ltd v SA Municpal Workers’ Union on behalf of Members & others(2014)

35 ILJ 983 (LAC).

10. Plaschem (Pty) Ltd v CWIU (1993) 14 ILJ 1000 (LAC).

11. Polyoak (Pty) Ltd v Chemical Workers Industrial Union & others (1999) 20 ILJ (LC).

12. POPCRU v LEDWABA[2013] 11 BLLR 1137 (LC).

13. Poswa v Member of the Executive Council Responsible for Economic Affairs,

Environment & Tourism, Eastern Cape 2001 (3) SA 582 (SCA).

14. Potgietersrus Platinum Ltd v CCMA & others (1999) 20 ILJ 2679 (LC).

15. PPWAWU & others v Tongaat Paper Co (Pty) Ltd (1992) 13 ILJ 393 (IC).

16. Pretoria City Council v Walker 1998 (2) SA 363 (CC).

17. Principal Immigration Officer v Bhula 1931 AD.

18. Prinsloo v Van der Linde and another 1997 (6) BCLR 759 (CC).

19. Public Servants Association of SA v Minister of Justice & Constitutional Development &

others (2001) 22 ILJ 2303 (LC).

R

1. R v Canqan & others 1956 (3) SA 366 (E).

2. R v Mtiyana 1952 (4) SA 103 (N).

3. R v Smit 1995 (1) SA 239 (K).

270

4. Raad van Mynvakbondde v Die Kamer van Mynwese (1984) 5 ILJ 344 (IC).

5. Raad van Mynvakbonde v Minister van Mannekragen n ander 1983 (4) SA 29 (T).

6. Ram Transport SA (Pty) Ltd v SA Transport & Allied Workers Union & others (2011) 32

ILJ 1722 (LC).

7. Ramotsepane & others v Barmot Truck Hire ([002] 6 BLLR 525 (LAC).

8. Rand Tyres & Accessories v Industrial Council for the Motor Industry 1941 TPD 108.

9. Ray’s Forge & Fabrication (Pty) Ltd v NUMSA & others (1989) 10 ILJ 762 (IC).

10. RSA v Hugo 1997 (6) BCLR 708 (CC).

11. Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union [2002] 1 BLLR 84 (LC).

S

12. S v Gelderblom 1962 (1) SA 497 (C).

13. S v Gwadiso 1996 (1) SA 388 (CC).

14. S v Makwanyane 1995 (3) SA 391 CC.

15. S v Mamabolo (E TV and others Intervening) 2001 (3) SA 409 (CC).

16. S v Pennington and Another 1997 (4) SA 1076 (CC).

17. S v Zuma & others 1995 (2) SA 642 (CC).

18. SA Agricultural Plantation & Allied Workers Union & others v Premier of the Eastern

Cape & others (1997) 18 ILJ 1317 (LC).

19. SAAPAW Free State & Others v Fourie & Another [2007] 1 BLLR 67 (LC).

20. SA Breweries Ltd v Food & Allied Workers Union & others (1989) 10 ILJ 844 (A).

21. SA Catering & Allied Workers Union & others v Pep Store (1998) 19 ILJ 1226 (LC).

22. SACCAWU v Edgars Stores Ltd & another (1997) 18 ILJ 1064 (LC).

23. SA Chemical Workers Union and others v Sentrachem Ltd (1998) 9 ILJ 410 (IC).

24. SA Clothing & Textile Workers Union v Free State & Northern Cape Clothing

Manufacturers‘ Association (2001) 22 ILJ 2636 (LAC).

25. SA Clothing & Textile Workers Union v Yarntex (Pty) Ltd t/a Bertrand Group (2010) 31

ILJ 2986 (LC).

26. SA Clothing & Textile Workers Union v Yarntex (Pty) Ltd t/a Bertrand Group (2013) 34

ILJ 2199 (LAC).

271

27. SACTWU & others v Novel Spinners (Pty) Ltd [1999] 11 BLLR 1157 (LC).

28. SACWU & others v Afrox Ltd [1997)]4 BLLR 382 (LC).

29. SACWU v Noristan Holdings (Pty) Ltd & others (1987) 8 ILJ 682 (IC).

30. SACWU v Pharm Natura (Pty) Ltd (1986) 7 ILJ 696 (IC).

31. SA Defense Union v Minister of Defense & another (1999) 20ILJ 2265 (CC).

32. SA Democratic Teachers Union v Minister of Education (2001) 22ILJ 2325 (LC).

33. SA Diamond Workers’ Union v The Master Diamond Cutters’ Association (1982) 3 ILJ

87 (IC).

34. SA Federation of Civil Engineering Contractors on behalf of its members v National

Union of Mineworkers & another (2010) 31 ILJ 426 (LC).

35. SA Laundry, Dry cleaning, Dyeing & Allied Workers Union v Advance Laundries t/a

Stork Napkins (1985) 61 544 (IC).

36. Samancor Ltd & another v National Union of Metalworkers of SA (1999) 20 ILJ 2941

(LC).

37. Samancor Ltd v National Union of Metalworkers of SA & others (2000) 21 ILJ 2305

(LC).

38. Samancor Ltd v NUMSA & others (2000) 8 BLLR 956 (LC).

39. SA Municipal Workers Union v SA Local Government Association (2010) 31 ILJ 2178

(LC).

40. SA National Defence Union v Minister of Defence (2006) 27 ILJ 2276 (SCA).

41. SANSEA v NUSOG [1997] 4 BLLR 486 (CCMA).

42. Sapeko Tea Estates (Pty) Ltd v Maake & others [2002] 10 BLLR 1004 (LC).

43. SA Police Service v Police & Prisons Civil Rights Union & others (2007) 28 ILJ 2611

(LC).

44. SA Police Service v Police & Prisons Civil Rights Union & another (2011) 32 ILJ 1603

(CC).

45. Sappi Fine Papers (Pty) Ltd (Adams Mill) v PPWAWU & others [1997] 10 BLLR 1373

(SE).

46. SA Security Employers Association v TGWU & others (2) [1998] 4 BLLR 436 (LC).

47. SA Scooter & Transport Allied Workers Union & others v Karras t/a Floraline (1999) 20

ILJ 2437 (LC).

272

48. Sasol Industries v SACWU (1990) 11 ILJ 1010 (LAC).

49. SATAWU v Coin Reaction (2005) 26 ILJ 150 (LC).

50. SATAWU and Another v Garvas and others 2013 (1) SA 83 (CC).

51. SA Transport & Allied Workers Union v Garvas & others (2011) 32 ILJ 2426 (SCA).

52. SA Transport & Allied Workers Union v Garvis (2012) 33 ILJ 1593 (CC).

53. SA Transport & Allied Workers Union & others v Ikhwezi Bus Service (Pty) Ltd (2009)

30 ILJ 205 (LC).

54. SA Transport & Allied Workers Union & others v Moloto No & another (2012) 33 ILJ

2549 (CC).

55. SAWU v Cape Lime (1988) 9 ILJ 441 (IC).

56. Schoeman v Samsung Electronics (Pty) Ltd [1997]10 BLLR 1364 (LC).

57. Scholtz v Stadsraad van Mangaung (NH 11/2/5494, 23 January 1992).

58. Sealy of SA (Pty) Ltd & others v Paper Printing Wood & Allied Workers Union (1997) 18

ILJ 392 (LC).

59. Secunda Supermarket CC t/a Secunda Spar & another v Dreyer NO & others [1998] 10

BLLR 1062 (LC).

60. Security Services Employers Organization & others v SA Transport & Allied Workers

Union & others (2006) 27 ILJ 1217 (LC).

61. Security Services Employers’ Organisation & others v SATAWU & others (2007) 28 ILJ

1134 (LC).

62. Semenya & others v CCMA & others (2006) 27 ILJ 1627 (LAC).

63. Sentraal-Wes (Kooperatief) Bpk v Food & Allied Workers Union & others (1990) 11 ILJ

977 (LAC).

64. Seven Abel CC t/a The Crest Hotel v HARWU (1990) 11 ILJ 504 (LAC).

65. Shezi (1) Nxumalo (2) Zuke (3) v Consolidated Frame Cotton Corporation Ltd (1984) 5

ILJ 10.

66. Shishonga v Minister of Justice & Constitutional Development & another (2007) 28 ILJ

195 (LC).

67. Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ 1603 (LAC).

68. Sibidli & others v Western Province Preserving Co Ltd (NHE 11/2/106 (EL), 4 March

1992).

273

69. Simba (Pty) Ltd v Food & Allied Workers Union & others (1998) 19 ILJ 1593 (LC).

70. Sithole v Nogwaza NO (1999) 20ILJ 2710 (LC).

71. Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC).

72. South African Post Office Ltd v Commissioner Nowosenetz [2013] 2 BLLR 216 (LC).

73. South African National Security Employers Association v TGWU & others (1) [1998] 4

BLLR 364 (LAC).

74. Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Workers Union &

another (2000) 21 ILJ 1315 (LAC).

75. Stewart Wrightson v Thorpe 1977 (2) SA 943 (A).

76. Steel Mining & Commercial Workers Union & others v Brano Industries (Pty) Ltd (2000)

21 ILJ 666 (LC).

77. Stuttafords v SACTWU [2001] 1 BLLR 47 (LAC).

78. Supreme Spring-A Division of Met Industrial v MEWUSA (J2067/2010, unreported).

T

1. TSI Holdings (Pty) Ltd & others v NUMSA & others [2004] 6 BLLR 600 (IC).

2. Tiger Food Brands Ltd t/a Albany Bakeries v Levy NO & others (2007) 28 ILJ 1827

(LC).

3. Tiger Wheels Babelegi (Pty) Ltd t/a TSW International v National Union of Metalworkers

of SA & others (1999) 20 ILJ 677 (LC).

4. Towels, Edgar Jacobs Ltd v The President of the Industrial Court & others 1986 (4) SA

660 (C).

5. Transnet Ltd v SATAWU [2011] 11 BLLR 1123 (LC).

6. Transnet Soc Ltd v National Transport Movement [2014] 1 BLLR 98 (LC).

7. Transport & Allied Workers Union of SA & another v Putco Ltd (NH 11/2/5494, 23

January 1992).

8. Transport & Allied Workers Union of SA (TAWUSA) & others v Unitrans Fuel &

Chemical (Pty) Ltd (2013) 34 ILJ 1785 (LC).

9. Trident Steel (Pty) Ltd v John NO & others (1987) 8 ILJ 27 (W).

10. TSI Holdings (Pty) Ltd & others v NUMSA & others [2004] 6 BLLR 600 (IC).

274

11. TSI Holdings (Pty) Ltd v National Union of Metalworkers of SA & others (2006) 27 ILJ

1483 (LAC).

12. Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union & others

(2012) 33 ILJ 998 (LC).

U

13. UAMAWU v Fodens (SA) (Pty) Ltd (1983)4 ILJ 212 (IC).

14. UASA- The Union v BHP Billiton Energy Coal: South Africa (JS 1082/09) [2012]

ZALCJHB 97, [2013] 1 BLLR 82 (LC).

15. United African Motor & Allied Workers Union v Fodens (SA) (Pty) Ltd (1983) 4 ILJ 212

(IC).

16. United Association of SA v BHP Billiton Energy Coal SA Ltd (2013) 34 ILJ 2118 (LC).

17. United Association of South Africa-The Union v Impala Platinum Ltd (Case no: JS

1082/09).

18. University of the Witswatersrand Johannesburg v Commissioner Hutchinson (2001) 22

ILJ 2496 (LC).

V

1. Van Lingen v Est Van Lingen 1946 (2) PH F 54.

2. Vidar Rubber Products (Pty) Ltd v CCMA & others [1998] 6 BLLR 634 (LC).

3. Vista University v Botha & others [1997] 5 BLLR 614 (LC).

4. Vista University v Botha & others (1997) 18 ILJ 1040 (LC).

5. Vryenhoek & others v Powell NO & others 1996 (1) SA 984 (CC).

W

19. Western Platinum Ltd v National Union of Mineworkers and Others (2000) 21 ILJ 2502

(LC).

20. WG Davey (Pty) Ltd v National Union of Metalworkers of SA (1999) 20 ILJ 2017 (SCA).

21. Woolworths (Pty) Ltd v SA Commercial Catering & Allied Workers Union & others

(2006) 27 ILJ 1234 (LC).

275

22. Workers Union of SA v Crouse No & Another (2005) 26 ILJ 1723 (LC).

INTERNATIONAL CASES

A

1. Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) Judgment of

30 Nov. 2010, p. 664.

2. Anderson Fed’n of Teachers v School City of Anderson, 252 Ind. 558, 251 N.E.2D 15

(1969).

3. Attorney-General v Moagi 1982 (2) Botswana LR 124, S v Zuma & others 1995 (2) SA

642 (CC).

B

1. Baena-Ricardo et al v Panama, Inter-American Court of Human Rights, Merits,

Reparations and Costs, Judgment of Feb. 2, 2001, Series C No. 72.

4. Baena-Ricardo et al v Panama, Inter-American Court of Human Rights, Merits,

Reparations and Costs, Judgment of Feb. 2, 2001, Series C No. 72.

5. Baena-Ricardo et al v Panama, Inter-American Court of Human Rights, Merits,

Reparations and Costs, Judgment of Feb. 2, 2001, Series C No. 72.

6. Black v Law Society of Alberta, [1986] 3 W.W.R 590 (Alta. C.A.).

7. Board of Education v Shanker 54 Misc. 2d 941, 283 N.Y.S. 2d 548 (Sup. Ct. 1967).

8. Brotherhood of R.R. Trainmen v Jacksonville Terminal Co., 394 U.S. 369 (1969).

9. B.R. Singh v Union of India [1999] Lab I.C. 389 (396) (S.C.).

C

1. City of Cleveland v Division 268, 41 Ohio Op. 236, 90 N.E.2D 711 (1949).

2. Ciraklar v Turkey, 80 DR 46 (1995) (Application No 19601/92).

3. Cisse v France ECHR (Application No 51346/99) (9April 2002).

4. City and Country of San Francisco v Cooper (1975) 13 Cal.3d 898.

276

5. City of Cleveland v Division 268, 41 Ohio Op. 236, 90 N.E.2D 711 (1949).

6. Collymore v Attorney-General, [1970] A.C. 538.

7. Commission of the EC v Luxembourg [2008] ECR I-4323.

8. County Sanitation Dist. No. 2 v. Los Angeles County Employees' Assn. (1985) 38 Cal.3d

564 [214 Cal.Rptr. 424, 699 P.2d 835].

9. Crofter Harris Tweed Co. v Veitch, [1942] 1 ALL ER 142 (HL).

D

1. Davis v Henry, 555 So. 2d 457- La: Supreme Court 1990.

2. Demir and Baykara v Turkey [2009] IRLR 766; 48 EHRR 54.

3. Dolphin Delivery Ltd v Retail Wholesale & Department Store Union, Local 580 (1984),

10 D.L.R (4th) 198 (B.C.C.A).

E

1. El Rancho Unified School Dist. v National Education Assn., 33 Cal.3d 946.

2. Enerji Yapi- Yol Sen v Turkey, Application No 68959/01, Decision 21 April 2009.

F

1. Francis Corallie Mullin v Administrator of Delhi AIR 1981 SC 746.

G

1. G v Federal Republic of Germany, (1989) 60 DR 256.

2. German Federal Labour Court (Bundesarbeitsgericht) Judgment 10 June 1980 (Case 1

AZR 822/79).

3. Gujarat Steel Tubes v Its Mazdoor Sabha AIR 1980 SC 1896.

H

1. Hand Woven Harris Tweed Co. Ltd v Veitch (1942) A.C 435.

2. Health Services and Support-Facilities Subsector Bargaining Ass’n v British Columbia,

2007 SCC 27, [2007] 2 SCR 391.

277

3. Health Services and Support-Facilities Subsector Bargaining Assn. v British Columbia,

[2007] 2 SCR 391.

4. Helvering v Gerhardt, 304 U.S. 405, 427 (1938).

5. Hunter v Southam Inc., [1984] 2 S.C.R. 145.

I

1. In Re Berry (1968) 68 Cal.2d 137.

2. International Union, U.A.W.A. v Wisconsin Employment Relations Board, 336 U.S 245

(1949).

3. ITWF v Viking Line ABP [2008] IRLR 143 (C-438/05).

K

1. Kairbitta Estate v Rajmanickam [1960] II L.L.J. 275 (S.C.).

L

1. Laval un Partneri v Svenska Byggnadsarbetareforbundet, Judgment of 18 Dec. 2007

[2007] ECR I-11767.

2. Lavigne v Ontario Public Service Employees Union (1991) 81 DLR (4th) 545.

3. Los Angeles Met. Transit Authority v Brotherhood of Railroad Trainmen (1960) 54

Cal.2d 684.

M

1. Miles v Wakefield Metropolitan District Council (1997) 2 ALL E.R 1081.

2. Mounted Police Association of Ontario v Canada, 2005 SCC 1.

N

1. NAACP v Clairborne Hardware C (458 US 886 (1982).

2. Nat’l Labour Relations Bd. v Jones & Loughlin Steel Corp., 301 U.S. 1 (1938).

3. Newspapers Ltd v Wilson, Palmer and others [1995] 2 A.C. 454.

4. Nicol and Selvanayagam v United Kingdom, Judgement of the court, 11 January 2001.

5. NLRB v Mackay Radio & Telegraph Co 304 US. 333 (1938).

278

O

1. Ontario (Attorney General) v Fraser, 2011 SCC 20, [2011] 2 SCR 3.

2. OU Viking Line Esti [2007] ECR I-10779 (Viking Line).

R

1. Re Alberta Union of Provincial Employees and the Crown in Right of Alberta (1980) 120

DLR (3d) 590 (Alta. Q.B).

2. Rechtsanwalt Dr. Dirk Ruffert v Land Niedersachsen [2008] ECR I-1989.

3. Reference Re Public Service Employee Relations Act [1987] 1 SCR 313.

4. Regina v Oakes [1986] 1 SCR. 103.

5. R v Genereux 88 DLR (4th) 110 (SCC).

6. Re Retail, Wholesale & Department Store Union, Locals 544, 496, 635 and 955 and

Government of Saskatchewan (1985) 19 DLR (4th) 609.

7. Re Service Employees’ International Union, Local 204 and Broadway Manor Nursing 4

Home (1983) ONSC 4 DLR (4th) 231.

S

8. Saskatchewan Federation of Labour v Saskatchewan 2015 SCC 4.

9. Schechter Poultry Corp. v United States, 295 U.S 495 (1935).

10. School Committee of the Town of Westerly v Westerly Teachers Ass’n, 299 A.2D 441

(1975).

11. Shammagar Jute Factory v Their Workmen (1950) Law Institue Journal 235 (IT).

12. Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001)

AHRLR 60(ACHPR 2001).

279

13. State v Traffic Telephone Workers Federation of New Jersey (66 A.2D 616).

14. Sunday Times Case 30 EUR, Ct. H.R. (Ser. A) 1 (1979).

15. Syndicate Bank v K. Umesh Nayak [1994] II L.L.J. 836 (S.C.).

T

1. Texas & New Orleans R.R. Co v Brotherhood of Ry. And S.S Clerks, 281 U.S. 548, 570

(1930).

2. The Gypsy Council v United Kingdom, Judgment of the Court, 14 May 2002.

3. The Rail, Marine, and Transport Workers v U.K 1045/10-Chamber Judgment [2014]

ECHR 366 (8 April 2014).

4. Tramp Shipping Corporation v Greenwich Marine Incorp [1975] 2 ALL E.R. 989 (C.A).

5. Ts’epe v IEC and Others (2005) AHRLR 136 (LeCa 2005).

U

1. United Fed’n of Postal Clerks v Blount, 325 F. Supp. 879 (D.D.C),AFF’D, 404 U.S. 802

(1971).

2. United States v United Mine Workers 330 U.S. 258 (1947).

W

1. Werhof v Freeway Traffic Services GmbH & Co KG.

2. Wilson v UK 2002 35 EHRR 523.

Z

1. Ziliberberg v Moldova ECHR (Application NO 61821/00) (4 May 2004).

LEGISLATION

SOUTH AFRICA

1. Bantu Affairs Administration Act 111 of 1984

280

2. Black Authorities Act 58 of 1951

3. Black Labour Act Black Labour Act 67 of 1964

4. Bantu Labour Regulation Act 70 of 1973

5. Black Labour Relations Act 48 of 1953

6. Black Labour Settlement of Disputes Act 48 of 1953

7. Black (Urban Areas) Consolidation Act 25 of 1945

s 10

8. Electoral laws Consolidation Act 46 of 1946

9. Indemnity and Undesirables Special Importation Act 1 of 1914

10. Industrial Conciliation Act 11 of 1924

s 12

s 24

11. Industrial Conciliation Act 28 of 1956

s 1

s 7

s 17

s 44

s 45

s 46

s 77

s 78

12. Industrial Conciliation Act 24 of 1930

13. Industrial Disputes Prevention Act 20 of 1909

s 5

s 6

s 25

281

14. Manpower Training Act of 1981

15. Mines and Wage Act 12 of 1911

16. Mines and Works Amendment Act 25 of 1926

17. Native Labour Regulations Act 15 of 1911

s 13

s 14

18. Native Labour (Settlement of Disputes) Act 48 of 1953

s 7

19. Promotion of Black Self- Government Act 46 of 1959

20. Riotous Assemblies and Criminal law Act 27 of 1914

21. Riotous Assemblies and Criminal Law Amendment Act 25 of 1914

22. South African Police Services Act 68 of 1995

s 38

23. The Constitution of the Republic of South Africa; 1996

s 15

s 17

s 18

s 23

24. The Defense Act 44 of 1957

s 126

25. The Labour Relations Act 83 of 1988

26. The Labour Relations Act 66 of 1995

s 12

s 23

282

s 31

s 64

s 65

s 66

s 67

s 68

s 69

s 70

s 71

s 72

s 77

s 95

s 96

s 97

s 133

s 187

s 200

s 213

27. The Republic of South Africa Constitution Act 32 of 1961

28. The Republic of South African Constitution Act 110 of 1983

29. The Suppression of Communism Act 44 of 1950

283

30. Wage Act 27 of 1925

s 1

31. Workman’s Compensation Act 27 of 1914

THE UNITED STATES OF AMERICA

32. National Labour Relations Act 29 USC 151 (2006)

s 7

s 13

CANADA

33. Public Services Act Proc 103 of 1994

34. Public Service Essential Services Act, S.S. 2008

c. P-42.2

35. The Constitution Act, 1982

36. The Trade Union Amendment Act, S.S. 2008

c. 26